[1] Method of appeal against a ruling dismissing an application for change of security under the Civil Execution Act (=special appeal)

[2] In a case where the court of appeal did not indicate that the appeal is a special appeal while submitting a petition of appeal against a judgment that only the special appeal is permitted, and where the court of appeal did not indicate that it is the Supreme Court, the court of acceptance of the

[1] Articles 15(1) and 23(1) of the Civil Execution Act; Articles 439, 440, and 449 of the Civil Procedure Act / [2] Article 449 of the Civil Procedure Act

[2] Supreme Court Order 2009Ma1689 Decided February 21, 201 (Gong2011Sang, 621) (Gong2011Sang, 621)

Applicant

Seocho-young Saemaeul Saemaeul Community Fund

Daegu District Court Order 2013Ra413 dated October 7, 2013

The order of the court below is reversed. Special appeal against the first instance decision is dismissed.

1. The decision shall be made ex officio;

Article 15(1) of the Civil Execution Act provides that “An immediate appeal may be filed against a judgment by the court of execution on the execution procedure only when special provisions exist.” However, there is no provision that an immediate appeal may be filed against a ruling dismissing an application for change of security under the Civil Execution Act, and such ruling is not subject to the application of Articles 439 and 440 of the Civil Procedure Act which are generally permitted to file an appeal. Accordingly, an appeal may be filed only with the special appeal under Article 49 of the Civil Procedure Act which is applicable mutatis mutandis under Article 23(1) of the Civil Execution Act. In addition, in a case of objection against a judgment that is allowed only special appeal, even if the party fails to indicate that the special appeal is particularly special appeal and the appellate court is not indicated as the Supreme Court, the court which received the written appeal shall regard it as a special appeal and send the records of the trial to the Supreme Court. Even if the appellate court was tried as a appellate court, this is ultimately attributable to the judgment of a court without authority (see Supreme Court Order 2009Da709716, Jan. 16, 2016).

According to the records, the special appellant submitted a written appeal to the court of first instance against the dismissal ruling of the application for changing the security of this case which cannot be appealed by an immediate appeal, and the first instance court sent the records to the court of first instance, which is not the Supreme Court, and the original court dismissed the appeal by deeming it as an immediate appeal.

However, in light of the above legal principles, the above order of the court below is a non-authorized court judgment and violates Article 27(1) of the Constitution, and thus, the order of the court below should be reversed. In addition, as long as the order of the court below is reversed for this reason, this case should be treated as a special appeal against the decision of the court of first instance, so it will be dealt

2. The grounds of special appeal are examined;

A special appeal may be made only on the ground that there is a violation of the Constitution that affected the judgment, or that the judgment on whether or not there is a violation of the Constitution or a statute, which is the premise of the judgment, is unreasonable.

However, the reason for the special appellant’s assertion is merely that the first instance court’s rejection of the application for the change of security by the special appellant does not constitute a legitimate reason for special appeal. Even if examining the record, the lower court’s order does not seem to have any reason for special appeal, and thus, the instant special appeal cannot be accepted.

3. Therefore, the order of the court below is reversed and the special appeal of this case is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Chang-suk (Presiding Justice)