[손해배상등][공2014상,1108]
In a case where cash equivalent to the amount of revenue stamps has been paid to the receiving bank in accordance with the order of recognition and correction and has been paid as a service fee without being paid as revenue stamps, whether the effect of correction of revenue stamps arises (negative), and in such a case, whether the presiding judge who examines the written complaint, etc. has the right to ask for an explanation and again give an opportunity to correct revenue stamps (affirmative)
Considering that there is a difference in the payment procedure, the management entity, and the method of disposal of the amount to be paid, etc., if the applicant erroneously paid cash equivalent to the amount of the stamp to the receiving bank in accordance with the correction order of recognition and paid the stamp with the service charge without paying it by stamp, it cannot be deemed that the stamp was paid. However, in this case, the applicant has paid cash equivalent to the stamp amount to the receiving bank in order to implement the correction order of recognition, and as a result, the applicant has the appearance similar to the stamp correction, and it can be objectively recognized, and the stamp and the service charge may cause confusion in the process of the same payment as the receiving bank, and the applicant is deemed to have been given an opportunity to correct the stamp amount by mistake in the service charge. In light of the above, it is reasonable to grant the applicant an opportunity to correct the stamp amount by mistake to the receiving bank.
Therefore, a presiding judge who examines a complaint, etc. shall not immediately reject a complaint or a written appeal even if the certificate of “paid” and the “paid” notice of receipt of the receiving bank were not submitted within the given period for correction after recognition order, and shall verify, by means of electronic data or other appropriate means, whether cash equivalent to the amount of stamp has been paid as service fees to the managing bank or the receiving bank. If such fact is verified, he/she shall be given an opportunity to ask the management bank or the receiving bank for explanation as to whether the service fees have been paid to the applicant for the purpose of correcting the stamp. The rejection of a complaint or an appeal without providing an opportunity for correction is unlawful since it did not perform its duty to
Article 136 of the Civil Procedure Act, Article 13 of the Act on the Stamps Attached for Civil Litigation, Etc., Articles 28, 29, and 30(1) of the Rules on the Stamps for Civil Litigation, Etc., Article 3(1), (2), (4), and 5 of the Service Fee Rules
Plaintiff
Suwon District Court Order 2013Na21076 dated December 23, 2013
The order of the court below is reversed, and the case is remanded to Suwon District Court Panel Division.
The grounds of reappeal are examined.
1. Article 13 of the Act on the Stamps Attached for Civil Litigation, Etc. provides that an application for failure to attach revenue stamps or to pay cash equivalent to the amount of revenue stamps is illegal, but the same shall not apply when an applicant has affixed a considerable revenue stamp or paid cash equivalent to the amount of revenue stamps by the court’s order of correction. Articles 28, 29, and 30(1) of the Rules on the Stamps Attached for Civil Litigation, Etc. provide that the payment of cash equivalent to the above revenue stamps shall be made to the Service Fee Receipt Bank provided for in Article 3(1) of the Rules on the Service Fee (hereinafter “Receiving Bank”) and the applicant shall submit a written confirmation of the receipt and the written notice of receipt issued by the Receiving Bank to the court. The Receiving Bank shall without delay deposit the amount of cash receipt equivalent to the amount of revenue stamps into the National Treasury account of the Bank of Korea after the closing of each business day, and the revenue collection officer shall submit the receipt and payment statement to the competent competent court for the receipt and payment of revenue stamps without delay. Meanwhile, Article 3(1) and (2) and (4) of the Fees.
Considering that there are differences in the payment procedures, the management entity, and the method of disposal of the amount to be paid, etc. as stated above, it is reasonable to grant the applicant an opportunity to correct whether the amount of revenue stamps is cash equivalent to the amount of revenue stamps in accordance with the correction order of recognition, if the applicant erroneously paid to the receiving bank and instead paid the amount by the service charge without stamp, the stamp cannot be deemed to have been paid. However, if the applicant pays the cash equivalent to the amount of revenue stamps to the receiving bank in order to implement the correction order of recognition, the applicant has the appearance similar to the stamp correction and the appearance similar to the stamp correction can be objectively recognized, and it can be objectively recognized that the stamp and the delivery charge were the same as the receiving bank, and the applicant appears to conform to the concept of justice, and thus, it is reasonable to grant the applicant an opportunity to correct the amount of revenue stamps by mistake in the delivery charge, etc. Therefore, if the presiding judge examines the collection order, etc., and then the applicant fails to submit the correction notice or the correction notice to the purport that it is unlawful.
According to the records, the court below determined that the Re-Appellant was sentenced to the judgment of dismissal in Suwon District Court 2013Na21076, and submitted a petition of appeal, but did not affix the stamps prescribed in the petition of appeal; the presiding judge of the appellate court issued an order to correct the stamp amount of KRW 605,700 within seven days from the date of service of the petition of appeal; and the order was served on the Re-Appellant on December 6, 2013; the Re-Appellant paid KRW 605,700 in cash equivalent to the stamp amount under the above order of correction to the Receiving Bank on December 13, 2013; the Re-Appellant paid it in accordance with the service charge; the presiding judge of the appellate court issued an order to dismiss the petition of appeal on the ground that the re-appellant did not supplement the stamp on December 23, 2013; and the re-appellant filed a petition to correct the stamps and submitted a copy of the above service charge as supporting materials.
According to the above facts, the re-appellant paid cash equivalent to the amount of stamp as service fee within the period specified in the order of correction of stamp, and the presiding judge of the appellate court confirmed such fact before issuing the order of rejection of the appeal and provided the re-appellant with an opportunity to request the re-appellant to correct the stamp again.
Nevertheless, the presiding judge of the appellate court issued an order to immediately dismiss the petition of appeal on the ground that the appellate court did not take such measures as above and did not correct the stamp within the period specified in the order of correction. In so doing, the lower court erred by misapprehending the legal doctrine on the correction of stamp, thereby affecting the conclusion of the judgment.
Therefore, the order of the court below is reversed and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Kim Yong-deok (Presiding Justice)