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)

Articles 122, 500(1), 501, and 502(3) of the Civil Procedure Act, Article 3 of the Act on Special Cases Concerning the Provision of Stamps or Deposits

[Plaintiff, Appellant] 16 June 1998 (Gong1998Ha, 1943)

Republic of Korea (Law Firm Na, Attorneys Woo-soo et al., Counsel for defendant-appellant)

Respondent

Daejeon High Court Order 2010Ka3 dated January 26, 2010

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

The grounds of special appeal are examined.

According to the records, with respect to the claim for compensation for losses between the applicant and the other party on January 25, 2010, the applicant filed an application with the same court on November 25, 2009, Daejeon District Court Decision 2009Guhap166, which declared on November 25, 2009. Accordingly, the court below rendered a decision ordering a temporary suspension of compulsory execution on January 26, 2010 on the ground that the above application for the suspension of compulsory execution was well-grounded, and the court below rendered a decision on January 26, 2010 to suspend compulsory execution based on the above judgment of the provisional execution sentence on the condition that the applicant deposits KRW 190 million as security in cash.

However, Articles 50(1) and 501 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 a security furnished upon the party’s request. Article 122 of the Civil Procedure Act, which applies mutatis mutandis to the security of the suspension of compulsory execution pursuant to Article 502(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 a document concluding an entrustment contract to guarantee payment pursuant to the Supreme Court Regulations, unless otherwise agreed by the parties. Meanwhile, Article 3 of the Act on Special Cases Concerning the Provision of Stamps Stamps and Deposit provides that the State shall not deposit pursuant to the Civil Procedure Act when filing an appeal against the judgment on the declaration of provisional execution, and the court determines that the request for the suspension of compulsory execution based on the judgment is well-grounded and accepts it, the court shall order the applicant’s State not to provide the security and not to temporarily suspend compulsory execution (see Supreme Court Order 28 June 28, 1998).

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 Provision of Stamps Attaching and Deposit, which ordered a temporary suspension of compulsory execution on condition that the applicant who filed an application for the suspension of compulsory execution based on the judgment of the provisional execution ordering the State as the country shall provide the security as above. The grounds for special appeal pointing this out

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 on the bench.

Justices Ahn Dai-hee (Presiding Justice)