A. The nature of an appeal made against the "provisional disposition" under Article 507 (2) of the Civil Procedure Act (special appeal)

B. Whether the order of the court below that dismissed without dismissing the application for the suspension of compulsory execution under Article 507(2) of the Civil Procedure Act should be reversed without filing an objection to the claim (negative)

1. As to the provisional disposition under Article 507 (2) of the Civil Procedure Act, an appeal may not be filed by analogying Article 473 (3) of the same Act, and even if the parties did not indicate a special appeal, the court of original judgment shall regard it as a special appeal and send records to the Supreme Court. Since the court of original judgment sent records to the Daegu High Court and issued a decision to the Daegu High Court, it shall be deemed that the court of original judgment did not have authority to do so, and the Supreme Court shall treat this case as a special appeal against the decision of the court of original judgment.

2. The order of the court below that dismissed the above motion for provisional disposition as to compulsory execution under Article 507(2) of the Civil Procedure Act, which did not raise an objection to the claim, should be dismissed in an unlawful manner. Thus, the order of the court below that rejected this motion is dismissed in error or conclusion, and this point does not constitute a ground for reversal

Articles 507 and 420 of the Civil Procedure Act

Supreme Court Order 66Ma579 Dated July 26, 1966 Dated December 9, 1964

Special Appellants

Busan District Court Order 81Ka627 Dated May 19, 1981

The special appeal is dismissed.

According to the records, the court below (referring to the Jinsan District Court's Jinju support), based on Articles 505 and 507 of the Civil Procedure Act, decided that the special appellant dismissed the application for the suspension of compulsory execution of this case, which requested a judgment that the compulsory execution of this case will be suspended until the judgment of the court of first instance is rendered, based on the executory exemplification of the judgment in the claim for loans 80Rahap212 of the Busan District Court's Jinju branch, based on Article 505 and Article 507 of the Civil Procedure Act. It is clear that the Daegu High Court dismissed the appeal with the grounds that the appeal is groundless.

However, as the so-called provisional disposition under Article 507 (2) of the Civil Procedure Act takes place as a temporary measure after filing a lawsuit of objection and a judgment is rendered until a judgment is rendered, the appeal cannot be filed by analogy of Article 473 (3) of the same Act (see Supreme Court Order 64Ma912, Dec. 9, 1964; 64Ma912, etc.). As such, even though the parties did not indicate a special appeal, the court below should treat it as a special appeal and send records to the Supreme Court.

However, in this case, since the original court sent the records to the Daegu High Court and the above court returned to the court without authority to make a decision on them, the appeal of this case shall be deemed as a special appeal against the original court's decision and shall be dealt with (see Supreme Court Order 66Ma579 delivered on July 26, 196).

On the other hand, the provisional disposition with respect to compulsory execution under Articles 505 and 507 (2) of the Civil Procedure Act is merely an incidental procedure to a claim objection suit, and such provisional disposition is presumed to be premised on the filing of a claim objection suit. In light of the records, the application of this case shall be rejected as illegal until the decision of the court below in this case is rendered, and the order of the court below that rejected the application of this case shall be justified (if the court below dismissed the application of this case, and rejected the application due to its apparent error or conclusion, it shall not be a ground for reversal of the court below's order), and it shall be deemed that the special appeal of this case is groundless without the need to determine the grounds for appeal of the special appellant based on the premise that the above requirements are met (the grounds for reversal of the court below's order shall not be grounds for reversal).

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

Justices Kim Jung-tae (Presiding Justice)