[1] Method of appeal against a trial on the execution of Article 16 of the Civil Execution Act

[2] Method of filing an appeal against an order to dismiss an appeal by the presiding judge of the court of execution on a special appeal (=Immediate appeal) and whether an appeal against the order to dismiss the appeal can be deemed as a reappeal or a special appeal (negative)

[1] Articles 16, 17(1), and 23(1) of the Civil Execution Act, Article 449 of the Civil Procedure Act / [2] Articles 399(2) and (3), 425, 442, 449, and 450 of the Civil Procedure Act

[2] Supreme Court en banc Order 94Ma1961 dated January 20, 1995 (Gong1995Sang, 897) Supreme Court Order 2010Da37 dated June 7, 2010

Special Appellants

Daejeon District Court Order 2014Ma311 dated December 3, 2014

The case shall be transferred to the Panel Division of Daejeon District Court.

Judgment ex officio is made.

1. An immediate appeal may not be filed against a judgment on an objection filed under Article 16 of the Civil Execution Act unless the judgment on an objection does not fall under Article 17(1) of the Civil Execution Act, and an appeal may be filed under Article 449 of the Civil Procedure Act applied mutatis mutandis under Article 23(1) of the Civil Execution Act.

However, according to Articles 450 and 425 of the Civil Procedure Act, which are applicable mutatis mutandis to a special appeal under Article 399(2) and (3) of the Civil Procedure Act, an immediate appeal may be filed against an order of rejection of a written appeal by the presiding judge of the court of execution concerning the above special appeal. Here, an order of rejection of a written appeal by the presiding judge of the court of execution is a primary disposition, and the above immediate appeal, which is the method of filing a complaint against it, is the first appeal by nature, and the appeal against the above rejection order shall not be deemed a reappeal or a special appeal (see Supreme Court en banc Order 94Ma1961, Jan. 20, 195; Supreme Court Order 2010Do37, Jun. 7, 2010, etc.).

2. The record reveals the following facts.

A. On July 23, 2014, the Special Appellant filed the instant application with the Daejeon District Court (Seoul District Court Branch Decision 2013Ma10050, Jun. 24, 2014) to the effect that, as an obligor and owner of the real estate at auction, the time limit for the payment of the price ( July 24, 2014), the designation was revoked. The lower court rendered a decision to dismiss the instant application on July 29, 2014.

B. On August 28, 2014, a special appellant filed an immediate appeal against the foregoing dismissal ruling, and subsequently, the presiding judge of the lower court received an order from the presiding judge to “a correction of KRW 17,750 won within seven days from the date on which the order was served,” and filed an application for legal aid against the service charges, etc. on October 6, 2014.

C. On December 3, 2014, the lower court issued an order to dismiss an immediate appeal under Article 15 of the Civil Execution Act and Articles 443 and 399 of the Civil Procedure Act (hereinafter “original appeal order”) on the ground that the delivery charge of a special appellant was not corrected, and the special appellant filed an immediate appeal against the lower judgment on December 18, 2014.

D. The lower court considered the above immediate appeal as a special complaint and sent the records of this case to the Supreme Court, and the Supreme Court accepted the case as a special complaint.

3. Examining these facts in light of the legal principles as seen earlier, the filing by a special appellant against the order of the court below cannot be deemed an immediate appeal, and the competent court shall be deemed to be the collegiate division of the Daejeon District Court.

4. Therefore, the case shall be transferred to the competent court. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim So-young (Presiding Justice)