In case of an immediate appeal against a ruling on an objection against provisional seizure, whether the proviso of Article 134(1) and (2) of the Civil Procedure Act shall apply mutatis mutandis (affirmative)

Except as otherwise provided for in the Civil Execution Act, the provisions of the Civil Procedure Act shall apply mutatis mutandis to the procedure for preservative measures (Article 23(1) of the Civil Procedure Act). However, the Civil Procedure Act provides that the court shall determine whether a case to be concluded by its ruling is open for pleadings, and the court may examine the parties, interested persons, and other witnesses if the pleading is not open (Article 134(1) proviso and (2)). Meanwhile, the Civil Execution Act provides that a trial on an objection against provisional seizure shall be decided by a ruling, and the court shall determine the date of pleading or the date of examination on which both parties may participate and notify the parties thereof (Article 286(1) and (3)), while the court shall only provide that an immediate appeal may be made regarding the decision on an objection, and does not provide for any examination method by the appellate court. Thus, with respect to the hearing of the appellate court, it shall be determined whether the provisions of the Civil Procedure Act on the case to be concluded by its ruling will not open for pleadings and whether the parties, interested persons and other reference persons may be examined.

Articles 23(1), 286(1) and (3) of the Civil Execution Act, Article 134(1) and (2) of the Civil Procedure Act,

Korea Asset Management Corporation (Law Firm Postal Co., Ltd., Counsel for the plaintiff-appellant)

The debtor

Seoul Central District Court Order 201Ra1346 dated January 30, 2012

The reappeal is dismissed.

The grounds of reappeal are examined.

1. As to the ground of reappeal to the effect that the non-applicant actually owned the real estate of this case and the donation contract of this case constitutes a fraudulent act

This part of the grounds for re-appeal refers to the allegation of the cooking of evidence and fact-finding within the exclusive jurisdiction of the lower court, which is a fact-finding court, and cannot be a legitimate ground for re-appeal.

2. As to the ground of reappeal relating to omission of judgment

When the reasons for the decision on an immediate appeal case against a decision on a preservative measure are stated, the decision of the first instance may be quoted (Articles 203-3(1), 203(1)7 and 203(1)3 of the Civil Execution Rule).

The court below's rejection of the appeal by the re-appellant against the decision of the court of first instance, which was accepted by the other party's objection against the provisional seizure of this case, is just under the above provision, and there is no error of omission of judgment as otherwise alleged in the grounds for reappeal.

3. As to the ground of reappeal that the lower court’s failure to hold the examination date was unlawful

Except as otherwise provided for in the Civil Execution Act, the provisions of the Civil Procedure Act shall apply mutatis mutandis to the procedure for preservative measures (Article 23(1) of the Civil Execution Act). However, the Civil Procedure Act provides that the court shall determine whether a case to be concluded by its ruling is open for pleadings, and that the court may examine the parties, interested persons, and other reference persons when the pleading is not open (Article 134(1) proviso and Article 134(2) proviso). Meanwhile, the Civil Execution Act provides that a judgment on an objection against provisional seizure shall be rendered by ruling, and the court shall determine the date for pleading or the date for examination at which both parties may participate and notify the parties thereof (Article 286(1) and (3)), while the Civil Procedure Act provides that an immediate appeal may be filed against a decision on such objection, and does not provide for the method for the examination of the appellate court

Therefore, it is reasonable to view that the provisions of the Civil Procedure Act concerning the case to be concluded by decision are applied mutatis mutandis to the hearing of the appellate court, and it is reasonable to determine whether to examine the parties, interested persons and other reference persons when the appellate court does not open the pleading and pleading.

The court below is just in light of the above legal principles that the date for pleading or the date for hearing is not held, and there is no violation of the procedure as otherwise alleged in the grounds for reappeal.

4. Conclusion

Therefore, the reappeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee In-bok (Presiding Justice)