즉시항고에 따른 항고심재판에 대한 재항고는 즉시항고인가?

Abstract

There are two types of miscellaneous appeals in Korean Code of Civil Procedure(hereafter KCCP). One of them is sofortige Beschwerde which should be lodged with the court within one week of service of the order or disposition on which are based. The other is einfache Beschwerde which was no particular time period for lodging. The order of Beschwerdegericht normally could be appealed again to the Korean Supreme Court and it is called weitere Beschwerde. However, The first Beschwerde for the orders and dispositions of the High Court is also called weitere Beschwerde even though they are the first Beschwerde. Namely, there are two types of weitere Beschwerde as the first miscellaneous appeal and the second miscellaneous appeal. Weitere Beschwerde which is the second miscellaneous appeal is just the second appeal and could not be belong to sofortige or einfache Beschwerde. Furthermore, in the procedure of weitere Beschwerde the provisions of the review appeal shall apply mutatis mutandis. Therefore, Weitere Beschwerde which is the second miscellaneous appeal should be lodged with the court within 2 weeks. But the Korean Supreme Court and majority of academics insist that weitere Beschwerde for the order of Beschwerdegerichts of sofortge Beschwerde should be lodged with the court within one week. This interpretation could be against the manifest provisions of KCCP because the KCCP explicitly provides that in the procedure of weitere Beschwerde the provisions of the review appeal of KCCP shall apply mutatis mutandis. It seems to be that the Korean Supreme court follows the main stream of the Japanese Supreme Court holdings without any consideration of the provisions of the KCCP. In this article, the author would like to investigate the origins of the holdings of the Korean and Japanese Supreme Court and furthermore Code of Civil Procedure of past Germany and Japan. By the way, without consideration of the theoretical problem, holdings of the Korean Supreme Court infringe the due process of law and fundamental rights of the parties because it shortens the time period of miscellaneous appeals for weitere Beschwerde without any reasonable grounds. The author also would like to stress the needs of the reform of miscellaneous appeals system in civil area because civil procedural provisions about miscellaneous appeal system conflicts with civil enforcement law. Furthermore, both provisions of miscellaneous appeal apply mutatis mutandis in bankruptcy law simultaneously. It should cause a fatal error and infringe the rights of the parties severely.