In case where the State filed an appeal against the judgment with the declaration of provisional execution and applied for the suspension of compulsory execution, whether the court may order the provision of security by citing it (negative)

Article 3 of the Act on Special Cases Concerning the Provision of Stamps and Deposit provides that the State shall not deposit the provisions of the Civil Procedure Act in the performance of a lawsuit or administrative litigation against the State to which the State is a party. Thus, where the State files an appeal against a judgment with a declaration of provisional execution, files an application for the suspension of compulsory execution based on the original copy of the judgment, and the court cites the application for the suspension of compulsory execution, the court shall order the State not to provide any security and to

Articles 473(1) and 474 of the Civil Procedure Act, Article 3 of the Act on Special Cases Concerning the Attaching Stamps and the Provision of Deposit

Korea

Other than 1 et al.

Seoul High Court Order 98Ka240 dated April 2, 1998

The order of the court below is reversed and the case is remanded to Seoul High Court.

We examine the grounds for special appeal.

According to the records, with respect to the claim for damages between the special appellant on March 30, 1998 and the other party 1 and one other, the special appellant filed an application with the same court for the suspension of compulsory execution based on the original copy of the judgment sentenced to the provisional appellant on February 25, 1998, and on this ground, the court below rendered a decision ordering the temporary suspension of compulsory execution with the content of suspending the suspension until the pronouncement of judgment in the case of Seoul High Court 98Na15790 on April 2, 1998, on the condition that the special appellant's application on April 2, 1998 is well-grounded, and that the compulsory execution based on the above original copy of the judgment between the above parties shall deposit 48,23,188 won as security.

However, Articles 473(1) and 474 of the Civil Procedure Act provide that in a case where an appeal is filed against the judgment on the declaration of provisional execution, the court may order a temporary suspension of compulsory execution with or without having the security furnished upon request of the parties. Article 112 of the Civil Procedure Act, which applies mutatis mutandis to the security of the suspension of compulsory execution pursuant to Article 475(3) of the same Act, provides that the provision of security shall be made by depositing money or the securities recognized by the court or by submitting the documents under the Supreme Court Regulations, unless otherwise agreed by the parties, or by submitting the documents under the Supreme Court Regulations. Meanwhile, Article 3 of the Act on Special Cases Concerning the Attaching and Attaching of Stamps provides that the State shall not deposit the provisions of the Civil Procedure Act in the performance of a lawsuit and administrative litigation against the judgment on the declaration of provisional execution. Thus, where the State files an appeal against the judgment on the declaration of provisional execution, and the court renders a request for the suspension of compulsory execution based on the original copy of the judgment and sees it.

Nevertheless, it cannot be said that the court below erred by misapprehending the legal principles of Article 3 of the Act on Special Cases Concerning the Attaching and the Provision of Deposit when ordering a special appellant, a country that applied for the suspension of compulsory execution, to temporarily suspend compulsory execution on the condition of providing a security as above. The grounds for this point are with merit.

Therefore, the order of the court below is reversed, and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Shin Sung-sung (Presiding Justice)