The purport of Articles 501 and 500(1) of the Civil Procedure Act concerning suspension of execution due to the filing of an appeal that “the order to have a security furnished and to have a compulsory execution carried out” is stipulated, and whether a party who has not filed an appeal may file an application for continuation of execution by furnishing a security (negative)

Articles 500(1) and (3), and 501 of the Civil Procedure Act

Supreme Court Decision 64Ma588 delivered on September 18, 1964 (No. 12-2, 109)

Applicant

Seoul Special Metropolitan City (Law Firm Seoul, Attorneys Kim Byung-jin et al., Counsel for defendant-appellant)

The motion of this case is dismissed.

Articles 501 and 500(1) of the Civil Procedure Act concerning suspension of execution due to the filing of an appeal provide that “In cases where an appeal has been filed against a judgment on the provisional execution to which a declaration of provisional execution has been made, it is deemed that the grounds for appeal are legally well-founded, and where there exists a vindication of the facts, the court may, upon a party’s request, order a temporary suspension of compulsory execution with or without having a security furnished, or may order a compulsory execution with having a security furnished or not having a security furnished, or may order a revocation of the compulsory disposition taken.” Meanwhile, Article 500(3) of the Civil Procedure Act provides that “No objection may be raised against the judgment under paragraph (1).”

In full view of the legislative purport, language, etc. of these provisions, Articles 501 and 500 of the Civil Procedure Act provides that “a party who appealed against a judgment with a provisional execution sentence shall have the security furnished and carry out compulsory execution” among the grounds provisions for applying for temporary suspension of compulsory execution against the judgment with a provisional execution order may order the court to suspend compulsory execution, and the respondent of the application for the suspension of compulsory execution may continue compulsory execution if the respondent of the application for the suspension of compulsory execution provided the security at the request of the appealed party, and it does not allow the party who did not appeal after the decision for the suspension of compulsory execution was rendered upon the request of the appealed party to apply for the suspension of compulsory execution. This goes against the purport that no objection is raised against the judgment for the suspension of compulsory execution (see Supreme Court Decision 64Ma588, Sept. 18, 1964).

According to the records, the applicant (appointed party, hereinafter the applicant) won part of the first instance court in the damages claim case filed against the respondent, and the incidental appeal of the respondent and the Nonparty are dismissed, and only the respondent has received a decision to suspend compulsory execution against the judgment of the first instance court that is declared provisional execution while filing an appeal.

Examining these facts in light of the above legal principles, in this case where the respondent is decided to suspend compulsory execution against the above judgment of the court of first instance, and the applicant who did not file an appeal against the appellate court judgment which maintained the above judgment of the court of first instance cannot seek continuation of compulsory execution, and thus the application for continuation of compulsory execution in this case

Therefore, the motion of this case is dismissed, and it is so decided as per Disposition by the assent of all participating Justices.

[Attachment] List of Selections: Omitted

Justices Shin Young-chul (Presiding Justice)