[항소장각하명령에대한재항고][집21(3)민,131 공1973.12.1.(477), 7568]
Cases where it is deemed impossible to dismiss a petition of appeal;
The purport of Article 371 of the Civil Procedure Act is that the presiding judge of the appellate court should first examine the petition of appeal before the appellate court's pleadings, and order the correction thereof when he finds the defect, and dismiss the petition of appeal by order when he refuses to comply therewith. Thus, in case where the service of the summons of date is impossible due to the unknown whereabouts of the defendant in the course of the lawsuit, there is no room for applying or applying Article 231 according to the above Article 371.
Articles 371 and 231 of the Civil Procedure Act
Re-appellant
Other Party
Seoul High Court Order 72Na497 Dated May 25, 1973
The original order is reversed. The case is remanded to the Seoul High Court.
The court below rejected the petition of appeal of the re-appellant by the order of the presiding judge under Articles 371 and 231 of the Civil Procedure Act because the re-appellant did not comply with the order to correct the address.
The court below, after examining the record, sent a copy of the petition of appeal to the defendant on May 19, 1972, and changed it as the date for pleading on May 10, 1972, but delayed the date due to the non-appearance's absence on June 2, 1972. The next designated date for pleading 10:00 on June 2, 1972. The court below ordered the re-appellant, who is the other party, to correct the other party's address within five days since the date for pleading 10:00 on May 18, 1973, the designated date for pleading 1973.
However, Article 371 of the Civil Procedure Act provides that the provisions of Article 231 of the same Act shall apply mutatis mutandis to cases where the necessary matters to be entered are omitted in the petition of appeal under Article 367(2) of the same Act, where the stamps are not attached to the petition of appeal, or where it is impossible to serve the petition of appeal. The purport of this provision is that the presiding judge of the appellate court should first examine the petition of appeal before entering the pleading of the appellate court and order correction thereof and dismiss the petition of appeal in case where it is impossible to serve the summons of the date of appeal due to the uncertainty of the defendant's whereabouts in the lawsuit, as shown above, in case where it is impossible to serve the summons of the date of appeal due to the application or mutatis mutandis application of Article 231 in accordance with Article 371 of the same Act.
Nevertheless, it is not illegal to dismiss the petition of appeal due to the same circumstance as the previous order is written in front. Therefore, this reappeal is therefore justified.
Therefore, by the assent of all participating judges, the original order is reversed, and the case is remanded to the court below. It is so decided as per Disposition.
Justices Kim Young-chul (Presiding Justice)