Methods of protesting against the decision on the grant of execution clause (=special appeal) and the measures of the court in receipt of a written appeal against the decision dismissing the objection;

The judgment on an objection against the grant of execution clause cannot be subject to an objection under Article 504 of the Civil Procedure Act, and it cannot be subject to an immediate appeal under Article 517 of the same Act, and eventually, there is no objection procedure. Therefore, it is interpreted that only special appeal under Article 420 of the same Act can be permitted. Even if the parties did not indicate that the special appeal is special appeal and that the appellate court is the Supreme Court, the court which received the written appeal should treat it as a special appeal and send the litigation record to the Supreme Court.

Articles 420, 504(1), and 517(1) of the Civil Procedure Act

Supreme Court Order 86Ma895 Decided November 7, 1986 (Gong1987, 222), Supreme Court Order 86Ma347 dated December 30, 1987 (Gong198, 398), Supreme Court Order 94Ma2132 dated May 13, 1995 (Gong195Ha, 2214), Supreme Court Order 95Ma531 dated July 12, 1995 (Gong195Ha, 2932)

Re-appellant

Busan District Court Order 96Ra165 dated December 24, 1996

The special appeal shall be dismissed.

Judgment ex officio is made.

According to the records, the court of original judgment (referring to the subsidiary support of the Busan District Court; hereinafter the same shall apply) was rendered against the person other than the applicant for the above execution clause on March 31, 1992 by filing a lawsuit claiming the name of the building with the court of original judgment 89Da8400, which was partially ruled against the defendant on March 31, 1992. The above applicant filed an appeal with the Busan District Court 92Na4168, 93Na1135 (Counterclaim) which ordered the above other party to remove the possession of the above non-applicant's building (hereinafter the part of the building in this case) from among each building on the ground of the Busan Dongdong-gu, Busan High Court 93, which was the special appellate court's order to dismiss the above non-applicant's appeal for the reason that it was impossible for the above non-applicant to occupy the above non-appellant's execution clause and the execution of the above non-appellant's special execution clause after being assigned to the court of final judgment.

However, an objection against the decision on the grant of execution clause cannot be raised as to the execution of Article 504 of the Civil Procedure Act. Since an immediate appeal under Article 517 of the same Act cannot be filed, and no objection procedure is in place, it is interpreted that only special appeal under Article 420 of the same Act can be permitted (see Supreme Court Order 94Ma2132 delivered on May 13, 1995). Even if the parties did not indicate that the objection is special appeal and the appellate court are the Supreme Court, the court in receipt of the written appeal shall treat it as special appeal and send the records of trial to the Supreme Court (see Supreme Court Order 95Ma531 delivered on July 12, 1995, Supreme Court Order 86Ma895 delivered on November 7, 1986, etc.).

In this case, the court below sent records to Busan District Court's appeal department, and the same court's decision eventually leads to a court's decision which is not authorized, so this case shall be treated as a special appeal to the court below (refer to Supreme Court Order 86Ma347 delivered on December 30, 1987).

In light of the records, the Re-Appellant's original judgment is served on August 3, 1996 and the peremptory order was served on August 12, 1996, and the original judgment was served on August 12, 1996, and it is apparent that the Re-Appellant filed the instant special appeal. Thus, this constitutes an unlawful case where the defects cannot be corrected.

Therefore, it is so decided as per Disposition by the assent of all participating judges who decide to dismiss the special appeal of this case without any further determination on the grounds of the special appeal.

Justices Park Jong-ho (Presiding Justice)