beta
Main Issues
Whether a re-appeal under Article 412 of the Civil Procedure Act may be raised against a decision of the appellate court which accepted an application for a preservative measure without pleading (O. 95Ma728)
Summary of Judgment
An obligor or respondent may raise an objection to the court that has issued the preservative measure pursuant to Articles 703 and 715 of the Civil Procedure Act against the decision of accepting an application for preservative measure, such as a provisional seizure or provisional disposition, which has been made without pleading, and even if such decision was made by the appellate court, it shall not be contested against it as a reappeal pursuant to Article 412 of the Civil Procedure Act.
[Reference Provisions]
Articles 412, 703, and 715 of the Civil Procedure Act
Reference Cases
Supreme Court Order 90Ma819 Dated March 29, 1991 (Gong1991, 1283) Dated July 26, 1973 92Ma19 Dated August 29, 1992 (Gong1992, 2837)
Re-appellant
Appellant 1 and 8 others
The order of the court below
Busan High Court Order 94Ra39 Dated June 1, 1995
Text
All reappeals shall be dismissed.
Reasons
The grounds for reappeal are examined ex officio prior to judgment.
According to the records, the court of first instance rendered a decision to accept the application for provisional disposition of this case without going through pleadings by the applicant who filed an appeal to the court of original judgment against the decision to dismiss the application for provisional disposition of this case.
However, an obligor or respondent can raise an objection to the court that issued the preservative measure pursuant to Articles 703 and 715 of the Civil Procedure Act, and even if the decision was made by the appellate court, it cannot be contested as a reappeal pursuant to Article 412 of the Civil Procedure Act, even if the decision was made by the appellate court (the party ruling 90Ma819 dated March 29, 191; the party ruling 92G19 dated August 29, 192, etc.).
Therefore, the reappeal of this case is unlawful and it is so decided as per Disposition by the assent of all participating Justices who reviewed the reappeal.
Justices Kim Jong-sik (Presiding Justice)