Acts and subordinate statutes applicable to an immediate appeal against a ruling on revocation of preservative measure on the ground of non-compliance with a filing order (=Provisions on immediate appeal under the Civil Procedure Act)

Article 15 of the Civil Execution Act, Article 44 of the Civil Procedure Act

Supreme Court Order 2005Ma201 Decided August 2, 2005 (2005Ha, 1544) Supreme Court Order 2006Ma313 Decided May 22, 2006

Applicant

Respondent

Daejeon High Court Order 2005Ra79 dated July 7, 2006

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

1. The judgment of the court below

The court below maintained the decision of the court of the first instance which dismissed the immediate appeal of this case on the ground that the respondent did not comply with the provisional disposition of this case on the ground that the provisional disposition of this case was revoked pursuant to Article 287 (3) of the Civil Execution Act and the respondent did not comply with the provisional disposition of this case on the ground that the provisional disposition of this case was revoked pursuant to Article 287 (3) of the Civil Execution Act, and the decision of the court of the first instance which rejected the immediate appeal of this case on the ground that Article 15 (a) of the Civil Execution Act, which is a provision on the immediate appeal under the Civil Execution Act, is applied to the

2. Judgment of party members

However, we cannot accept the above decision of the court below for the following reasons.

Since the procedure for issuing a lawsuit against a preservative measure is not related to enforcement, a decision to revoke a preservative measure on the ground of non-performance of the order cannot be deemed to fall under the "decision of the court of execution on the enforcement procedure" under Article 15 of the Civil Execution Act (see Supreme Court Order 2005Ma201, August 2, 2005; Supreme Court Order 2006Ma313, May 22, 2006, etc.). Accordingly, the provisions on an immediate appeal under the Civil Procedure Act, not Article 15 of the Civil Execution Act, concerning an immediate appeal, shall apply to such a immediate appeal.

Nevertheless, the court below erred by misapprehending the procedure for filing a lawsuit and the legal principles on the scope of application under Article 15 of the Civil Execution Act, which affected the conclusion of the judgment in order to maintain the first instance court's decision which rejected the immediate appeal of this case under the premise that Article 15 of the Civil Execution Act is applied to the immediate appeal against the decision on revocation of provisional disposition.

3. Conclusion

Therefore, without further proceeding to decide on the grounds of reappeal, the order of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yang Sung-tae (Presiding Justice)