[항소장각하][공1995.6.15.(994),2071]
Where a writ of summons for pleading against an appellant is not served, whether the presiding judge of the appellate court may order the correction of his/her address, which is the appellant, and whether no such correction has been made, to dismiss the petition of appeal
The presiding judge of the appellate court shall order the appellant to correct the defects within a reasonable time prescribed by Article 371 (1) and (2) of the Civil Procedure Act, and when the appellant fails to correct the defects, he/she shall dismiss the petition of appeal by such order, only when the petition of appeal violates Article 367 (2) of the same Act, or when the presiding judge of the first instance fails to make an order of correction under Article 368-2 (1) of the same Act, or when it is impossible to serve a duplicate of the petition of appeal, even though the petition of appeal is not attached to the petition of appeal, and even when a writ of summons, etc. of the date for pleading against the appellant is not served on the appellant, as long as the duplicate of the petition of appeal is served on the appellant lawfully, the presiding judge of the appellate court shall order the appellant to correct the appellant's address, which is the date for pleading, and on the ground that no correction is made thereby, dismiss the petition of appeal by such order.
Article 371 of the Civil Procedure Act
Re-appellant
Daejeon District Court Order 94Na6299 Dated January 18, 1995
The order of the court below is reversed and the case is remanded to the Daejeon District Court Panel Division.
The grounds of reappeal are examined.
According to the records of this case, when a duplicate of the petition of appeal was served on the appellee, but the summons of date for pleading has not been served several times, the presiding judge of the court below, which is the appellate court, ordered the defendant, who is the appellant, to serve the summons of date for pleading and other documents by public notice, and again, ordered the defendant to correct the above order within five days by public notice, and served the defendant with an order to correct the above order within five days, but the defendant did not correct his address within that period, and thus dismissed the petition
However, when the appellant fails to correct the defects within a reasonable time prescribed by Article 371(1) and (2) of the Civil Procedure Act, and when the appellant fails to correct the defects, the presiding judge of the appellate court shall order the appellant to correct the defects within a reasonable time prescribed by the order, and dismiss the petition of appeal by the order. The rejection of the petition of appeal shall be limited to the case where the petition of appeal violates the provisions of Article 367(2) of the same Act, or the presiding judge of the original instance (the first instance court) fails to make an order for correction under Article 368-2(1) of the same Act, or is unable to serve a duplicate of the petition of appeal. Even though a summons of the date for pleading against the appellant is impossible to serve a copy of the petition of appeal, the presiding judge of the appellate court shall order the appellant to correct the appellant's address, which is the date for pleading, by service, and on the ground that there is no correction accordingly, it shall not be dismissed by the order.
Therefore, the court below's order which ordered the defendant, who is the appellant, to correct his address within five days on the ground that a writ of summons is not served on the defendant, and dismissed the petition of this case on the ground that there is no correction within that period, is erroneous in the misapprehension of legal principles under Article 371 (1) and (2) of the Civil Procedure Act. The grounds for appeal pointing this out are
Therefore, the order of the court below is reversed and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.
Justices Kim Jong-sik (Presiding Justice)