1. In case where stamps are not affixed to an appellant pursuant to the provisions of law, the presiding judge of the original instance shall fix a reasonable period and order the appellant to correct the defects within such period, and when the appellant fails to correct the defects within such period, the presiding judge of the original instance shall dismiss the appeal by order (Articles 399 and 425 of the Civil Procedure Act).

In cases where an appellant paid cash equivalent to the amount of revenue stamps to the receiving bank in accordance with the order of correction of recognition and paid the fees by mistake and without stamp, the stamp correction cannot be deemed to have been made, and thus, the effect of stamp correction does not occur. However, even in such cases, it is reasonable to provide the appellant who erroneously paid the cash equivalent to the amount of revenue stamps with an opportunity to correct revenue stamps again. Even if the presiding judge of the lower court did not submit a written confirmation of the receipt bank and a written notice of the receipt after the order of correction of recognition was issued within the given period for correction, he/she shall not immediately dismiss the petition. The presiding judge of the lower court should promptly dismiss the petition: (a) verify the fact that cash equivalent to the amount of revenue stamps has been paid by computer or other appropriate means; and (b) provide the managing bank or the receiving bank with an opportunity to correct revenue stamps to the purport that the appellant is correct if such fact is confirmed. The rejection of the petition without such an opportunity for correction is unlawful by failing to perform his/her duty of explanation (see Supreme Court Order 2014Ma767, Apr. 2014. 2014).

2. According to the record, the following facts are revealed.

The Re-Appellant filed a lawsuit against the Defendant seeking the payment of damages, etc. and was sentenced to a judgment against the first instance court on December 3, 2019 (Seoul Central District Court 2019Da1372). The Re-Appellant appealed appealed against the first instance court judgment. On September 10, 2020, the lower court rendered a judgment dismissing the Re-Appellant’s appeal (Seoul Central District Court 2019Na80963). The Re-Appellant filed an appeal against the lower court on September 28, 2020.

On October 5, 2020, pursuant to the order of the presiding judge of the court below, the court below ordered the re-appellant to correct the amount of KRW 473,00 and service fees of KRW 84,400 within seven days from the date of receiving the order, and the order of correction was served on the re-appellant on October 13, 2020. The re-appellant claimed on October 22, 2020 that the service fees of KRW 474,40 and delivery fees of KRW 84,40 were paid to the receiving bank as service fees and the service fees of KRW 84,40 were delivered. The presiding judge of the court below ordered the re-appellant to dismiss the petition of appeal on the grounds that the re-appellant did not correct the stamps within the period of correction on October 26, 2020. The re-appellant submitted the service fees to the court below on October 27, 2020, and asserted that the re-appellant filed a re-appeal on October 21, 2010

3. Examining these facts in light of the legal principles as seen earlier, the following conclusions are derived.

The Re-Appellant paid cash equivalent to the value of the stamps as service charges before the order to dismiss the petition of appeal was issued. Before issuing the order to dismiss the petition of appeal, the presiding judge of the court below should have asked the Re-Appellant to confirm the existence of such fact and to correct the stamps. The presiding judge of the court below should have asked the Re-Appellant to seek an opportunity to correct the stamps again.

Nevertheless, the lower court’s order dismissing the petition of appeal on the grounds that the stamp was not corrected within the period for correction was erroneous by misapprehending the legal doctrine as to the amendment of stamp, thereby adversely affecting the conclusion of the judgment. The grounds for reappeal

4. 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.

March 11, 2021

Justices Kim Jae-sik in charge

Justices Min Min-young

Justices Noh Tae-ok