[판결금지급(항소장각하명령에대한즉시항고)] 확정[각공2006.3.10.(31),455]
In cases where an order of correction of a stamp, etc. was filed as to the defect, and the correction period specified in the order of correction has expired until the decision of dismissal of the application for the lawsuit has become final and conclusive, whether the complaint, etc. can be dismissed for the non-performance of the original order of correction without a separate order of correction (negative)
Where an application for the correction of a defect in the stamp, etc. was filed, and the correction period specified in the correction order has expired until the decision on dismissal of the application for the litigation has become final and conclusive, such order of correction shall be deemed null and void as it is impossible to make an amendment in accordance with the correction order since the correction period is too much more than that specified in the situation where the applicant for the stamp, etc. was denied the obligation to pay the stamp, etc., and therefore, the written complaint, etc. may be dismissed only when the rejection of the application for the litigation was again made after the final and conclusive and the rejection of the application is rejected.
Article 1 of the Act on the Stamps Attached to Civil Litigation, Etc. and Article 4 of the Rules on the Stamps Attached to Civil Litigation, etc.
Supreme Court Order 2002Ma3411 Decided September 27, 2002 (Gong2002Ha, 2560) Supreme Court Order 2004Ma1134 Decided July 15, 2005
Appellant
Daegu District Court Decision 2004Kadan32098 decided Nov. 17, 2005; Order to dismiss a petition of appeal filed on Nov. 17, 2005
The order of rejection of the petition of appeal filed on November 17, 2005 by the presiding judge of the first instance court shall be revoked.
1. Basic facts
The following facts are clear in records:
A. On December 28, 2004, the appellant filed a claim for injunction against the judgment of Daegu District Court 2004Kadan32098, and the above court rendered a judgment dismissing the appellant’s claim, and the original copy of the judgment was served on January 10, 2005.
B. When the appellant filed an appeal on January 20, 2005, the presiding judge of the first instance court issued an order to pay stamp fees and service fees within seven days from the date of service on January 21, 2005. The order of correction was served on the appellant on January 26, 2005.
C. On January 27, 2005, the appellant filed an application for legal aid with respect to the recognition of the petition of appeal, etc. on the above court No. 2005Ka-gu5, and the first instance court rendered a decision of dismissal on January 28, 2005, and the above decision was all dismissed and finalized (Supreme Court Order 2005Ma306 Decided February 24, 2005) and reappeals (Supreme Court Order 2005Ma306 Decided April 29, 2005).
D. On November 17, 2005, the presiding judge of the first instance court rejected the petition of appeal on the ground that the appellant did not issue a separate order of correction and did not comply with the above order of correction on January 21, 2005.
E. On November 22, 2005, the appellant received a certified copy of the above rejection order, and paid the stamp and the service charge on November 25, 2005.
2. Determination:
A. The main text of Article 1 of the Act on the Stamps Attached for Civil Litigation, Etc. provides that a protocol stating the purport of a complaint, an application or an application in the civil procedure, etc. shall attach revenue stamps as provided by the above Act, except as otherwise expressly provided for in other Acts. Thus, since a litigation structure under the Civil Procedure Act is a case where there are special provisions in other Acts, it is impossible to issue an order of correction of revenue stamps because the occurrence of the obligation to attach revenue stamps is prevented until a decision of dismissal becomes final and conclusive (see Supreme Court Order 2004Ma1134, Jul. 15, 2005). Furthermore, in case where an order of correction of stamp, etc. was filed for the defect thereof, and the correction period as provided by the order of correction has passed until the decision of dismissal of the application for the lawsuit is final and conclusive, such order of correction may no longer be deemed to have become legitimate and thus, it shall be deemed to have become invalid as an order of correction, and the subsequent rejection of the application can only be rejected.
If a decision on dismissal of an application for litigation has become final and conclusive, and only the remaining correction period after deducting the correction period as specified in the initial order of correction from the time of filing the application for litigation or from the time of filing the application for litigation, a complaint, etc. may be dismissed, such decision shall not be deemed unreasonable, taking into account all the contents of the correction order before several months, the time of filing the application for litigation, and the time of final and conclusive decision thereof, it shall not be deemed that it imposes an excessive burden on a party who has no other legal knowledge to calculate the progress and suspension of the correction period.
B. In light of the above legal principles, the rejection of the petition of this case on the ground of the non-performance of the order of correction on January 21, 2005 is illegal, without considering the correction order again after the decision of dismissal of the application of lawsuit relief became final and conclusive by the presiding judge of the first instance court, and without examining the implementation thereof.
3. Conclusion
Therefore, the presiding judge of the court of first instance shall revoke the order to dismiss the petition of appeal filed on November 17, 2005, and make a decision as per the order.
Judges Lee Jong-young (Presiding Judge)