[1] In a case where a reappeal is filed against the appellate court's decision on an immediate appeal under the Civil Execution Act, whether the provisions on the method of an immediate appeal under the Civil Execution Act shall apply mutatis mutandis (affirmative)

[2] The case holding that the court below's dismissal of an immediate appeal against the decision of dismissal of an indirect compulsory performance by the court of first instance where the re-appellant did not submit the re-appeal within 10 days when the re-appeal was filed, and the court below should dismiss the reappeal by decision, and where the court below did not dismiss it, it is reasonable that the Supreme Court

[1] Articles 15 and 261(2) of the Civil Execution Act / [2] Articles 15 and 261(2) of the Civil Execution Act

[1] [2] Supreme Court Order 2004Ma505 dated September 13, 2004 (Gong2004Ha, 1794)

Applicant (Attorney Lee Yong-soo, Counsel for defendant-appellant)

Respondent (Attorney Hwang Jae-soo, Counsel for defendant-appellant)

Seoul High Court Order 2004Ra457 dated November 9, 2004

The reappeal shall be dismissed. Expenses incurred in the reappeal shall be borne by the respondent.

1. In principle, an immediate appeal under the Civil Execution Act shall be filed and the reasons therefor shall be clearly stated in the application of the appeal in order to ensure the swift execution of the appeal and to prevent its abuse. The appellate court shall, in principle, investigate only the reasons why the appeal is clearly made. In case where the appellant has not stated the reasons for the appeal in the application of the appeal, he shall submit to the court of original judgment within 10 days from the date he submits the application of the appeal. In this case, the reasons for the immediate appeal shall be stated in accordance with the Supreme Court Regulations (Article 13 of the Regulations on Civil Execution). Where the appellant fails to submit the statement of reasons for the immediate appeal within the fixed period or has presented the statement of reasons for the immediate appeal within the fixed period, but it is evident that such immediate appeal is unlawful and cannot be corrected, the court of original judgment shall dismiss it by its ruling (Article 15(3), (4), (5) and (7) of the Civil Execution Act), and where the appellate court has sent the case without dismissing the immediate appeal despite having to dismiss it, the immediate appeal shall be dismissed immediately.

2. According to the records, the respondent filed a reappeal on November 18, 2004 against the judgment of the court below that dismissed an immediate appeal against the decision of indirect compulsory performance of the first instance, which was dismissed on November 9, 2004, and did not state the grounds for reappeal in the reappeal. The court below did not submit the reappeal within 10 days thereafter. The respondent sent the case to the Supreme Court on November 29, 2004, and the respondent submitted the reappeal only on December 20, 204, which was after the notice of receipt of the reappeal was received. In such a case, the court below did not send the case to the Supreme Court, but immediately dismiss the reappeal by its ruling under Article 15(5) of the Civil Execution Act, and where the court of original judgment sent the case without dismissal, it is reasonable for the Supreme Court to dismiss the reappeal (see Supreme Court Order 2004Ma505, Sept. 13, 2004).

3. Therefore, the reappeal is dismissed. The costs of reappeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Byun Jae-chul (Presiding Justice)