The council of occupants' representatives of the white keeping apartment (Attorney Kim Gi-chul, Counsel for the plaintiff-appellant)

White Construction Co., Ltd.

Seoul Western District Court Order 2008Mata3520 dated November 5, 2010

The appeal of this case is dismissed.

1. Basic facts

According to the records of this case, the following facts are recognized.

A. On April 25, 2008, the creditor filed a lawsuit against the debtor, etc. for the claim of the security deposit for repairing defects with Seoul Southern District Court 2006Gahap12511, and was sentenced to the judgment of the provisional execution court (hereinafter “the judgment of this case”) stating that “the debtor shall pay to the creditor 258,891,023 won and the amount equivalent to 6% per annum from July 27, 2006 to April 25, 2008 and 20% per annum from the next day to the date of full payment” (hereinafter “the judgment of this case”).

B. On the basis of the original copy of the judgment of this case, the creditor applied for a compulsory auction of real estate owned by the debtor with "85,377,446 won and 6% per annum from July 27, 2006 to April 25, 2008, and 20% per annum from the next day to the date of full payment." The creditor applied for a compulsory auction of real estate owned by the debtor at this court No. 2008,13520, and this court accepted it on September 1, 2008 and decided to commence compulsory auction of real estate.

C. Meanwhile, the creditor, who is dissatisfied with the instant judgment, filed an appeal with Seoul High Court No. 2008Na50174, Nov. 13, 2008, the said court rendered a decision in lieu of the conciliation that “the debtor shall pay to the creditor 302,035,211 won, and 6% per annum from July 27, 2006 to April 25, 2008, and 20% per annum from the next day to the date of full payment,” and the said decision became final and conclusive around that time.

D. On September 2, 2010, the debtor submitted an authentic copy of the decision in lieu of the above conciliation to the court of first instance. On September 3, 2010, the judicial assistant of the court of first instance rendered a decision to revoke the procedure for compulsory auction of this case on the ground that the judgment of this case became null and void as the decision in lieu of the above conciliation became final and conclusive on September 3, 2010. Upon filing an immediate appeal by the creditor, the court of first instance rendered a decision of the first instance that approves the disposition of the above judicial assistant on November 5, 2010.

2. Creditor's assertion;

Article 49 Subparag. 5 and Article 50 of the Civil Execution Act provides that the procedure for compulsory auction of this case shall be an executive title. The court of first instance revoked the procedure for compulsory auction of this case under Article 49 Subparag. 5 and Article 50 of the Civil Execution Act on the ground that compulsory mediation has been conducted at the appellate court of the judgment of this case. However, the fact that the judgment to be executed has lost its validity in Article 49 Subparag. 5 of the Civil Execution Act refers to a case where the judgment to be executed loses its effect, and there is no claim in the judgment to be executed. In the case where compulsory mediation has been completed at the appellate court, it shall not be deemed that there is no claim in the judgment to be executed, and therefore, Article 49 Subparag. 5 of the Civil Execution Act does not apply to the case where there is no claim in the judgment to be executed. In addition, even if compulsory

3. Determination

In principle, a judgment revoking an execution disposition shall take effect after final and conclusive, but an immediate appeal is allowed (Article 17(1) and (2) of the Civil Execution Act). In the case of revocation by submission of documents revoking execution under Article 49 subparag. 1, 3, 5, and 6 of the Civil Execution Act, the judgment shall take effect immediately upon notification of the judgment (Article 50(1) and (2) of the Civil Execution Act), and an immediate appeal shall not take effect upon notification of the judgment (Article 50(1) and (2) of the Civil Execution Act). In a case where a conciliation or compromise is established in an appellate court or a decision in lieu of conciliation becomes final and conclusive, even if there is a part consistent with the judgment of the first instance court, the judgment of the first instance shall become null and void, and thus, the original decision in lieu of conciliation of the judgment of the appellate court on the declaration of provisional execution constitutes “a certified copy of a protocol or a protocol prepared by a court official, which proves that the judgment has lost its effect due to

The fact that the court of the first instance rendered a decision to revoke the procedure for compulsory auction of this case on the grounds that the original copy of the decision in lieu of conciliation in the appellate court of the judgment of this case has been submitted is as seen earlier. Therefore, the argument that the decision of the first instance court is unlawful is without merit, and the creditor is not subject to an immediate appeal against the decision of the first instance court.

4. Conclusion

Therefore, the appeal of this case is unlawful as it is an appeal against a judgment that cannot be appealed. Therefore, it is so decided as per Disposition by the assent of all participating Justices.

Judges Cho Jae-chul (Presiding Judge)