Article 241(1) of the former Civil Procedure Act (amended by Act No. 6626 of Jan. 26, 2002; hereinafter the same) provides that where both parties are not present at the fixed date for pleadings or do not present at pleadings even if they are present at the fixed date for pleadings, the presiding judge shall summon both parties with a new date fixed. Paragraph (2) of the same Article provides that even if both parties are present at the fixed date for pleadings or present at the subsequent fixed date, if both parties fail to present at the meeting or present at the meeting within one month, the withdrawal of the lawsuit shall be deemed to have been made if they fail to present at the fixed date, and Paragraph (3) of the same Article provides that the withdrawal of the lawsuit shall be deemed to have been made if both parties fail to present at the fixed date or present at the subsequent fixed date for pleading.

However, according to the records of this case, the plaintiff 1 (the bankruptcy trustee of So-called Cheong comprehensive Financial Co., Ltd. was selected as a joint bankruptcy trustee after the case was transferred to the court below) and the plaintiff 1, the above plaintiff's attorney, the defendant and the defendant's attorney were not present at all on the 11th day of September 30, 199 and the 13th day of December 2 of the same year. The court of first instance continued to file a lawsuit after designating the 14th day of pleading, but at the 17th day of May 25, 200, the above plaintiff, the defendant and their legal representative were not present at all on the 17th day of pleading.

According to the provisions of Article 241(2) of the former Civil Procedure Act, when both parties fail to appear on the date for pleading two times, a date shall be designated upon request of the parties. However, when the court designates a new date ex officio, it shall be deemed that the date is the same as the case where the parties have designated the date upon request of the parties (see Supreme Court Decision 93Da56442 delivered on February 22, 1994). If both parties fail to appear or appear on the date for pleading after the ex officio or on the subsequent date, the withdrawal of the lawsuit shall be deemed to exist. Thus, the lawsuit in this case shall be withdrawn as of May 25, 200 pursuant to Article 241(3) of the Civil Procedure Act. However, the first instance court determined that the lawsuit in this case should be dismissed, and the second instance court rendered a judgment of winning part of the plaintiff's appeal by citing part of the plaintiff's appeal and the judgment dismissing the remainder of the plaintiff's appeal and the defendant's appeal by dismissal of both parties's appeal.

Therefore, without examining the grounds of appeal, the first instance and the judgment of the court below are reversed, and since it is sufficient to render a judgment by a party member based on the above facts, the lawsuit of this case is declared to have been terminated as of May 24, 200 by the absence of three times at the date of pleading of the first instance. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Jin-hun (Presiding Justice)