보정명령무효확인
1. Revocation of a judgment of the first instance;
2. The instant lawsuit shall be dismissed.
3. All costs of the lawsuit shall be borne by the Plaintiff.
1. Determination on the legitimacy of the instant lawsuit
A. On February 17, 2015, the Plaintiff asserted that the Defendant lost the Cheongju District Court case No. 2014Gaso26181 (hereinafter “former case”) between the Plaintiff and the Defendant, and submitted a petition of appeal, which was defective without paying the stamp fee and the service fee, on March 3, 2015, which is the last day of the appeal period, after being served with the said judgment. The presiding judge of the previous case ordered the Defendant to pay the stamp fee and the service fee (hereinafter “instant order of correction”) on March 11, 2015, which is subsequent to the expiration of the appeal period.
However, the order of correction of the presiding judge of the court below shall be made only within the period for correction, in the absence of the period for appeal under Article 396(1) of the Civil Procedure Act. Thus, the order of correction of this case issued after the lapse of the period for appeal is null and void.
B. We examine ex officio the legitimacy of the instant lawsuit.
A lawsuit seeking confirmation is recognized where obtaining a judgment of confirmation is the most effective and appropriate means to eliminate the Plaintiff’s legal status’s apprehension and risk (see, e.g., Supreme Court Decisions 2005Da41153, Jul. 10, 2008; 2010Da84932, Apr. 10, 2014). The Plaintiff’s confirmation of invalidation of the instant order of correction cannot be deemed to affect the Plaintiff’s legal status. As such, there is no benefit of confirmation against the Defendant seeking confirmation of invalidation of the instant order of correction.
[Defendant’s submission of the petition of appeal to Defendant on March 3, 2015 is not effective as recognition and unpaid service charges, and Defendant’s payment of stamp and service charges has exceeded the time limit for appeal, so Defendant’s appeal is unlawful as it was filed after the appeal period has expired. The above appellate court rendered a judgment rejecting Plaintiff’s claim (Cheongju District Court 2015Na1223). This judgment became final and conclusive on March 10, 2016.