[1] Whether the defendant's application for the suspension of compulsory execution as to the part revoked by the appellate judgment among the judgment of the first instance court of the provisional execution sentence is legitimate (negative)

[2] Whether the defendant, who did not appeal against the part maintained by the appellate judgment among the judgment of the first instance court of the provisional execution sentence, can seek a suspension of compulsory execution based on the judgment (negative)

[1] From among the judgment of the first instance court of the provisional execution sentence, the sentence of provisional execution of the part revoked by the appellate court judgment becomes null and void due to the declaration of the appellate court judgment, and the defendant submitted the original copy of the appellate court judgment to suspend the compulsory execution of this part only to the court of execution. Therefore, this part of the application is unlawful as there is no benefit to apply for

[2] From among the judgment of the first instance court of the provisional execution sentence, the defendant who is not dissatisfied with the part maintained by the appellate court judgment cannot seek a suspension of compulsory execution based on the judgment of the court of final appeal against the defendant cannot seek a suspension of compulsory execution from the court of final appeal. Thus, the application

[1] Articles 201(1), 473, and 474 of the Civil Procedure Act / [2] Articles 473 and 474 of the Civil Procedure Act

[2] Supreme Court Order 86Ka28 dated May 1, 1986 (Gong1986, 865)

Applicant

Respondent

The motion of this case is dismissed.

According to the records, the court of first instance rendered a judgment in favor of part of the plaintiff on the petition for loans between the applicant (the defendant-Appellee) and the respondent (the plaintiff-Appellant) regarding the case of applying for the suspension of compulsory execution of this case, and the judgment of winning part of the plaintiff on the provisional execution citing gold 85,00,000 won and damages for delay thereof. Accordingly, as a result of the defendant's appeal, the court of first instance revoked part of the defendant's appeal and dismissed the part against the defendant in excess of the part ordering the payment of gold 20,000,000 won among the judgment of first instance and the damages for delay thereof, and it is evident that only the plaintiff appealed and raised a final appeal.

On the other hand, among the judgment of the first instance court of the above provisional execution sentence, the sentence of provisional execution on the part revoked by the judgment of the court below becomes null and void due to the declaration of the judgment of the court below (see Article 201(1) of the Civil Procedure Act), and since the applicant is only required to submit the original copy of the judgment of the court of execution to suspend the compulsory execution of this part, the application for this part of the judgment is unlawful as there is no benefit to apply for the suspension of compulsory execution of this case. In addition, among the judgment of the court of first instance of the above provisional execution sentence, the applicant cannot seek the suspension of compulsory execution based on the judgment of the court of final appeal, which is the appellate court of this case (see Articles 473 and 474 of the Civil Procedure Act) and the application for the suspension of compulsory execution with respect to this part is also unlawful (see Supreme Court Order 8628Kao, May 1, 1986).

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

Justices Cho Cho-Un (Presiding Justice)