1. Case summary and key issue

A. Case summary

1) In the instant lawsuit brought by the Plaintiff (Appellants, hereinafter “Appellants”) against the Re-Appellants (Defendants, appellants, hereinafter “Re-Appellants”), the first instance court rendered a judgment in favor of some of the appellants on September 13, 2017, and only the Re-Appellants appealed appealed on September 14, 2017.

2) The lower court intended to serve a duplicate of the petition of appeal on the appellee, but became unable to serve the petition on the ground of “the unknown recipient” on October 13, 2017.

3) On October 18, 2017, the presiding judge of the lower court ordered the re-appellant to revise the address of the appellee within five days from the date of receiving the order of correction pursuant to Article 402(1) of the Civil Procedure Act, and the re-appellant directly received the order of correction of address on October 20, 2017.

4) The presiding judge of the court below ordered the rejection of the instant petition of appeal on December 14, 2017, since the re-appellant did not correct the respondent's address after 55 days from the date of receiving the order to revise the address. The re-appellant appealed appealed appealed on December 15, 2017.

B. Issues

The key issue of this case is whether the presiding judge of the appellate court shall order the correction of address within a reasonable period fixed by the presiding judge, and if the appellant fails to comply with this order, the presiding judge of the appellate court shall order the rejection of the petition of appeal.

2. Feasibility of the legal principles of precedents

Where it is impossible for the appellate court to serve a duplicate of a petition of appeal in the appellate court, the presiding judge of the appellate court shall order the appellant to revise the address of the appellee within a reasonable period fixed pursuant to Article 402(1) and (2) of the Civil Procedure Act. When the appellant fails to correct the address of the appellee within such period, the appellate court has declared the legal principle that the appellant must dismiss the petition of appeal by order (see, e.g., Supreme Court Order 68Ma1029, Sept. 24, 1968; Supreme Court Order 71Ma317, May 12, 1971). The above Supreme Court precedents are reasonable, and the reasons are as follows.

A. The current attitude of judicial precedents is more so consistent with the interpretation of the text and text of Article 402(1) and (2) of the Civil Procedure Act, and considering the legislative history thereof.

1) Article 402 of the Civil Procedure Act provides, "Where a petition of appeal is not issued under Article 397 (2), the presiding judge, etc. of the original instance has failed to issue an order under Article 399 (1), or where it is impossible to serve a duplicate of the petition of appeal without contrary to the provisions of Article 397 (2), or where it is impossible to serve a duplicate of the petition of appeal, the presiding judge of the appellate instance shall fix a reasonable period and order the appellant to correct the defects within such reasonable period," and Paragraph (2) of the same Article provides, "where the appellant has failed to correct the defects within the period under paragraph (1), or the presiding judge of the original instance has failed to dismiss the petition of appeal by his/her order under Article 399 (2)."

According to the language and text of the above provision of the law, in case where a duplicate of the petition of appeal is not served on the appellee, the presiding judge of the appellate court shall order the appellant to revise the defects in the petition of appeal so that a duplicate of the petition of appeal may be served on the appellee. Here, “the correction of the defects” means that the cause of impossibility of serving a duplicate of the petition of appeal should be corrected. Thus, if the cause of impossibility of serving a duplicate of the petition of appeal is due to the address of the appellee, the appellant should correct the address where the appellee can be served with the duplicate of the petition of appeal. Therefore, if the appellant fails to correct the address of the appellee within a reasonable period prescribed by the presiding judge of the appellate court, the presiding judge should dismiss the petition of appeal by an order.

2) Article 371 of the former Civil Procedure Act (amended by Act No. 4201 of Jan. 13, 1990) only provides that Article 231, which is a provision regarding the right to examine a complaint, shall apply mutatis mutandis in cases where a copy of a petition of appeal cannot be served on the defendant. At the time, the Supreme Court ordered the defendant to correct the defendant's address within a reasonable time fixed by the presiding judge where the defendant cannot be served on the defendant. In cases where the plaintiff fails to correct his/her address, the presiding judge must issue an order to dismiss the petition of appeal, and the appellate court interpreted that the presiding judge shall order the appellant to correct the respondent's address within a reasonable time fixed by the appellate court where the appellant fails to correct his/her address (see, e.g., Supreme Court Order 71Ma317, May 12, 1971).

Article 8 of the former Act on Special Cases Concerning the Promotion, etc. of Lawsuit, which was enacted by Act No. 3361 on January 29, 1981, for the purpose of preventing delay of litigation, prompt realization of the rights and obligations of the people, and facilitating dispute settlement, grants the presiding judge of the court below the right to review a petition of appeal to the presiding judge of the court below. Upon the amendment of the Civil Procedure Act by Act No. 4201 on January 13, 1990, Article 368-2 on the right to examine a petition of appeal of the presiding judge of the court below was newly established as incorporated under the Civil Procedure Act, and Article 371 on the right to examine a petition of appeal of the presiding judge of the appellate court was stipulated as the same content as Articles 231 and 232 on the right to examine a petition of appeal of the presiding judge of the court below. The Civil Procedure Act was wholly amended by Act No. 6626 on January 26, 2002, Article 368-2 and Article 371 of the former Civil Procedure Act changed to the presiding judge of the appellate court.

In light of such legislative history, where a duplicate of a complaint leads to impossible service, the presiding judge should issue an order to correct address and dismiss the complaint when the plaintiff fails to comply with such order, and where a duplicate of the petition of appeal reaches impossible service, the presiding judge should issue an order to correct address and dismiss the petition of appeal when the appellant fails to comply with such order.

B. The current precedent can be understood as the meaning of sanctions as to the appellant’s failure to meet the minimum requirements necessary for the proceeding of the appellate trial.

The submission of a petition of appeal by a party to a lawsuit against the court of first instance to the appellate court is an act of requesting the appellate court to proceed with the appellate court judgment and to serve the appellate court judgment. If so, the appellant must file an appeal by meeting the minimum requirements necessary for the proceeding of the appellate court judgment. The presiding judge of the appellate court may demand the appellant to correct the petition if he/she considers that the minimum requirements necessary for the proceeding of the appellate court is not satisfied at the stage of examining the petition of appeal. However, if the appellant fails to comply with the request of the presiding judge of the appellate court to correct the petition of appeal as above, it may be evaluated that the appellant either has no intention to undergo the appellate court judgment or has no intention to initiate the appellate court judgment or has failed to commence the appellate court judgment. The current precedent is a sanction against the foregoing attitude of the appellant, and if the appellant fails to comply with the

C. The presiding judge of the appellate court ordering the appellant to correct the address of the appellee on which a duplicate of the petition of appeal can be served does not impose an excessive burden on the appellant to the extent that it cannot be accepted.

1) The appellant may fully implement the order of the presiding judge for the correction of address by taking the following measures:

A) In practice, if the appellant submits a written correction of address to the appellate court, he/she will comply with the order to correct the address unless there are special circumstances. If the address of the appellant is not changed, it is sufficient that the appellant only states or indicates that there is no change of address in the written correction of address.

B) According to the proviso of Article 29(2)2 of the Resident Registration Act, Article 13(1) and attached Table 4 subparag. 1(a) of the Enforcement Rule of the Resident Registration Act, the appellant may apply for the perusal of the respondent’s resident registration card or the issuance of a certified copy or abstract of the respondent’s resident registration card to a related agency based on the order of the presiding judge to rectify the address of the appellant. The appellant may thereby ascertain the respondent’s current resident registration address, and revise the place of service by the appellee

C) A petitioner may apply for the service of a copy of a petition of appeal on a legal holiday or before sunrise or after sunset by an execution officer, depending on the grounds or circumstances in which it is impossible to serve a duplicate of the petition of appeal (Article 190(1) of the Civil Procedure Act). A petitioner may request the appellate court to commission, etc. an investigation deemed necessary to revise the address in accordance with specific cases (see Supreme Court Order 2014Ma282, Jul. 7, 2015).

D) If the appellant is no longer aware of the place where the appellee was served, a service by public notice may be applied for (Article 194(1) of the Civil Procedure Act).

2) In light of the purport that an order to correct the address to the appellant is an excessive burden to the extent that it is impossible to admit the appellant, the Supreme Court held that the rejection of the petition of appeal is unlawful, even though the appellant did not grant a reasonable period for correction and ordered the appellant to correct his/her address, and the reasonable period has not elapsed (see, e.g., Supreme Court Order 91Ma620, 91Ma621, Nov. 20, 191). In addition, the Supreme Court held that the appellate court should make the best effort to serve the duplicate of the petition of appeal before the rejection of the petition of appeal, in cases where other addresses than the respondent’s address stated in the petition of appeal or the judgment, are in the court records, the appellate court attempted to deliver the petition to such other address and then has not been served at least once, and the appellate court did not immediately order the appellant to correct his/her address and dismiss the petition of appeal on the ground that he/she failed to comply with such order (see, e.g., Supreme Court Order 2014Ma64, Apr. 2616).

D. In practice, the order to dismiss the petition of appeal is pre-determined in the order to correct address, so the order to dismiss the petition of appeal is a judgment that can sufficiently be predicted by the appellant.

In practice, the order to correct the address on the ground that the delivery of a duplicate of the petition of appeal is impossible is indicated to the effect that the petition of appeal may be dismissed on the basis of Article 402 of the Civil Procedure Act unless the correction of address is made within the period stipulated by the order. Accordingly, if the appellant fails to comply with the order to correct the address, he/she may sufficiently estimate the fact that the petition

E. The current precedent also accords with the future development direction in order to faithfully realize the first instance trial and to operate the appellate trial close to the post-trial trial.

It is desirable that all issues and methods of attack and defense should be present in the first instance trial, and a faithful trial through the organization of sufficient issues and extensive evidence examination should be resolved in an early fashion of legal disputes. In principle, the appellate court of civil procedure is ideally executing the nature of the legal judgment called unification of laws and regulations. This is also a way to contribute to the prompt realization of the rights and obligations of the people.

Where a duplicate of the petition of appeal is impossible to serve a duplicate of the petition of appeal, the view that the order to dismiss the petition of appeal is unreasonable may be based on the recognition that the court of first instance alone is insufficient to relieve the parties to the lawsuit. However, if the court of first instance faithfully proceeds, it cannot be concluded that the appellant who lost the court of first instance is guaranteed the right to receive the judgment guaranteed by the Constitution only when he/she must undergo the judgment of the appellate court (Article 27 of the Constitution), and all citizens have the right to receive the judgment in accordance with law as fundamental rights under the Constitution (see Constitutional Court Order 2009Hun-Ba297, Jul. 26, 2012).

The order to dismiss the petition of appeal has the meaning of sanction against the appellant who fails to take the minimum measures to proceed with the appellate trial, and its purpose is justifiable. If the appellant fails to comply with the order to dismiss the petition of appeal, it is the same as Article 402(1) and (2) of the Civil Procedure Act that bears the risk that the judgment of the first instance may be finalized by receiving

In light of such institutional meaning and role of the order to dismiss the petition of appeal, the current precedents can contribute to the settlement of legal disputes in early stages by effectively punishing the appellant who seeks to prevent the appeal against the loyalty of the judgment of the first instance court and to delay the proceedings against the trust and good faith. Therefore, the current precedents also accord with the future development direction, such as the loyalty of the judgment of the first instance court and the ex post facto review of the appellate court.

3. Determination as to the instant case

The presiding judge of the appellate court issued an order to dismiss the petition of appeal of this case on the ground that the re-appellant did not correct the respondent's address within the period specified in the order to rectify address within the period specified in the order to rectify address. This is in accordance with the current precedents on the interpretation of Article 402 (1) and (2) of the Civil Procedure Act, and there is no error in violation of

4. Conclusion

Therefore, the reappeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices, except for a dissenting opinion by Justice Park Sang-ok, Justice Lee Ki-taik, and Justice Lee Dong-won, and a concurrence with the Majority by Justice Min You-sook, Justice Kim Seon-soo, and Justice Noh Tae-tae

5. Dissenting Opinion by Justice Park Sang-ok, Justice Lee Ki-taik, and Justice Lee Dong-won

A. The majority opinion states that where a duplicate of the petition of appeal is impossible to be served, the presiding judge of the appellate court shall order the appellant to revise the address of the appellee within a reasonable period fixed pursuant to Article 402(1) and (2) of the Civil Procedure Act, and where the appellant fails to correct the address of the appellee within such period, the presiding judge of the appellate court shall maintain the existing Supreme Court decision that the appeal shall be dismissed by order.

However, in light of the continuity of litigation procedures, when considering the continuity of litigation procedures, the failure to serve a duplicate of the petition of appeal is merely a fact that the document of lawsuit is impossible to be served while the lawsuit is pending; it is unreasonable for the appellant to care only for the appellant due to the disadvantage caused by the impossibility to serve a duplicate of the petition of appeal even though the appellant is not causing the impossibility to serve a duplicate of the petition of appeal; and the rejection order and rejection order of the petition of appeal are essentially different trials, if the duplicate of the petition of appeal is impossible to serve a duplicate of the petition of appeal, it is not permissible to issue an order to correct the address to the appellant based on Article 402(1) and (2) of the Civil Procedure Act; or to dismiss the petition of appeal at the

B. 1) Even though the service of a duplicate of the petition of appeal is merely a part of the service of the lawsuit documents while the lawsuit is pending, unlike other litigation documents, it is not treated fairly by the appellate court to view the disadvantage of the appellant solely due to the impossibility of service of a duplicate of the petition of appeal, unlike other litigation documents.

A) In a case where the appellant has submitted a petition of appeal to the court of first instance, the court of first instance has already been served the documents of lawsuit to the parties to the lawsuit in the previous litigation proceedings, and the judgment of the court of first instance has been rendered. Inasmuch as the period for filing an appeal against the judgment of the court of first instance has not expired, the litigation proceedings are continued without termination. Therefore, serving a duplicate of the petition of

In general, where documents for a lawsuit are unable to be served while the lawsuit is pending, the court shall attempt to serve again, or finally serve documents for the lawsuit by means of dispatch or service by public notice, for the purpose of continuing the litigation procedures. This is a measure to ensure that the documents for the lawsuit are not served during the proceeding. The litigation procedures cannot be terminated solely on the ground that the documents for the lawsuit are impossible to

This is because litigation procedures are procedures for final settlement of legal disputes, and should continue until the objective is achieved.However, the termination of litigation procedures is also contrary to the intrinsic purpose of the litigation procedures, such as resolution of legal disputes, just because the address was not corrected after the copy of the petition of appeal was impossible to be served during the proceeding.

The Majority Opinion deems that the failure to serve a copy of the petition of appeal should be treated differently from that of other litigation documents, because it is distinct from that of other litigation documents. However, under the Civil Procedure Act, the appellate court is basically based on the first instance court’s litigation documents and the result of the proceedings. Even if the appellate court’s litigation proceedings have commenced by submitting a petition of appeal, it is only one of the litigation procedures that have arisen from the first instance court’s proceedings. Therefore, there is no reason to treat only the impossibility of serving a copy of the petition of appeal among the impossibility of serving multiple litigation documents after the continuation of litigation proceedings. Even if it is impossible to serve a new lawsuit, the Majority Opinion does not order the person who submitted the lawsuit documents to correct the address of the other party to the lawsuit because the duplicate of the petition of appeal is impossible to serve a copy of the petition of appeal. In practice, the appellate court deems it as identical to the case where the legal brief is impossible to serve, and thus, serves a copy of the petition of appeal to the person who submitted the lawsuit by public notice or service by public notice.

B) If we look at the location of the responsibility for which a duplicate of the petition of appeal is not served, it shall be deemed that the appellant is liable for the following reasons.

In addition, considering the legislative intent of Article 185(1) of the Civil Procedure Act which provides that "when a party, legal representative or legal representative alters the place of service, he/she shall immediately report such purport to the court," and that "a party to a lawsuit shall faithfully perform the lawsuit in accordance with the good faith pursuant to Article 1(2) of the Civil Procedure Act", the party to the lawsuit has a duty to take appropriate measures so that the document of lawsuit can be served properly after the continuation of the lawsuit.

The reason is that the service of litigation documents is an essential procedure for the progress of the litigation procedures, and if the litigation documents are not served properly, it would hinder the fair and prompt progress of the litigation procedures.

The defendant at the stage where the duplicate of the complaint has not yet been served is unaware of the fact of the complaint itself, so it cannot be said that he/she has a duty to take measures so that the duplicate of the complaint may be served. On the other hand, the respondent is a party to the lawsuit who is generally aware of the fact that the proceedings of the first instance court were conducted and that the judgment of the court of first instance is pronounced, and that the other party to the

Therefore, the appellee shall be deemed to have a duty to take appropriate measures so that a duplicate of the petition of appeal can be served properly. If the first instance court served a lawsuit against the appellee by serving the documents of lawsuit, a duplicate of the petition of appeal may also be served by serving by public notice. Nevertheless, the responsibility to correct the address due to the impossibility of serving a duplicate of the petition of appeal and the disadvantage arising from the lawsuit solely on the appellant is not equally treated the appellant and the appellee.

2) Since the order to dismiss a petition of appeal is remarkably different from the order to dismiss the petition of appeal (Articles 255(2) and 254 of the Civil Procedure Act), it does not accord with the principle on the order to correct the address and the order to dismiss the petition of appeal to be rejected when the copy of the petition of appeal is impossible to be served.

The continuation of a lawsuit following the filing of a suit takes effect only when a duplicate of the complaint is served (see, e.g., Supreme Court Decision 87Meu3155, Apr. 11, 1989). Therefore, even if the complaint is dismissed, the lawsuit is still pending in the stage where the duplicate of the complaint cannot be served, and the plaintiff is not at any disadvantage without the validity of the lawsuit, even if the complaint is dismissed. There is no particular obstacle to re-instigation of a suit for the same claim by the plaintiff ordered to dismiss the complaint.

On the other hand, the effect of the final judgment of the first instance following the filing of a petition of appeal shall arise by submitting a petition of appeal to the first instance court. The continuation of the lawsuit that occurred prior to the filing of a petition of appeal shall be maintained, and the delivery of a duplicate of the petition of appeal shall be irrelevant to the continuation of the lawsuit that has already occurred. In such a situation, when the order to dismiss the petition of appeal becomes final and conclusive, the judgment becomes final and conclusive by the first instance court against which the appellant lost is final and conclusive, and the appellant cannot make any assertion contrary to the content of legal judgment contained in the text of the final and conclusive judgment in subsequent lawsuit due to the res judicata effect of the first instance judgment. Unless the appellant does not go through a retrial,

An order to dismiss a complaint and an order to dismiss a petition of appeal may be deemed identical in terms of the fact that the procedures cannot be followed any more due to the impossibility of serving the complaint and the petition of appeal. However, the order to dismiss a petition of appeal means that the progress of the proceedings is no longer possible but only if it is desired, a new suit may be instituted. On the other hand, the order to dismiss a petition of appeal is the meaning that the proceedings should no longer proceed and the legal dispute should be

Where it is impossible to serve a duplicate of the complaint, the status in which only the plaintiff becomes the subject of the suit between the court and the party concerned.

In light of the circumstances where a lawsuit commences upon the Plaintiff’s request, it is evident that the Defendant’s address ought to be clarified by the Plaintiff. This is close to a general common sense for the handling of affairs. If there is no regulation under Article 255 of the Civil Procedure Act on the impossibility of delivering a copy of the complaint, the Plaintiff’s address should be identified for the proceeding of civil procedure. However, in the event where a duplicate of the petition of appeal is impossible to be served, it is completely different from the case where a copy of the petition of appeal becomes the subject of the lawsuit between the court and both parties, as the court and the appellant have been established as the case where the duplicate of the complaint is impossible to be served.

Although the Supreme Court did not serve a duplicate of the complaint and proceeded with the oral proceedings without being served on the duplicate of the complaint constitutes a serious violation of the litigation procedures (Supreme Court Decision 2010Da108388, Apr. 28, 201), the Supreme Court held that the defect not served on the duplicate of the petition of appeal does not constitute a cause that may affect the conclusion of the judgment unless the other party raises an objection without delay (Supreme Court Decision 4290Da433, Nov. 4, 1957; Supreme Court Decision 4290Sang81, Mar. 23, 1957). Considering this, the meaning and importance of the litigation law in the delivery of the duplicate of the complaint and the delivery of the duplicate of the petition of appeal can be fully different.

In short, the case where a duplicate of a complaint is impossible to be served and the case where a duplicate of a petition of appeal is impossible to be served is entirely different from the case where the duplicate of the petition of appeal is entirely different. In the case where it is impossible to serve a duplicate of the petition of appeal, the presiding judge of the first instance court may order the plaintiff to correct the address of the defendant at the stage prior to the continuation of the lawsuit. Thus, even if it is impossible to serve a duplicate of the petition of appeal as such

From the premise that the effect of the litigation law is equally different, it is wrong.

3) Even according to the language and text of the provisions related to the Civil Procedure Act, where a duplicate of the petition of appeal is impossible to serve, it cannot be interpreted that the appellant may order the appellant to correct the address of the appellee.

According to the language and text of Article 402(1) of the Civil Procedure Act, where it is impossible to serve a duplicate of the petition of appeal, the appellate court presiding judge shall order the appellant to correct the defects, but does not specify what is the defects. Therefore, what is the "defects" that can be ordered to correct to the appellant pursuant to Article 402(1) of the Civil Procedure Act is a matter of interpretation.

For example, if the appellant is unable to serve a duplicate of the petition of appeal because he/she did not attach the written payment of the service charges to the petition of appeal, the presiding judge of the appellate court may interpret that the appellate court may order the appellant to pay the service charges (see, e.g., Supreme Court Order 94Ma2452, Oct. 5, 195). "Defects which did not pay the service charges" exist from the time when the petition of appeal was submitted.

However, it cannot be interpreted that the address of the appellee stated in the petition of appeal is not a legal place for the following reasons, so that it can not be interpreted as a "defect that can order the appellant to correct pursuant to Article 402(1) of the Civil Procedure Act." Therefore, in a case where a duplicate of the petition of appeal is impossible to serve, the appellant cannot be ordered to correct the address of the appellee pursuant to Article 402(1)

Article 397(2) of the Civil Procedure Act only stipulates the indication of the party, legal representative, and the judgment of the court of first instance as the necessary matters to be stated in the petition of appeal (Article 398). However, the provisions concerning the briefs apply mutatis mutandis to the petition of appeal (Article 398), and the address of the party is merely the "matters to be entered in the briefs" (Article 274(1)1) of the Civil Procedure Act. The purport that the provisions concerning the briefs shall apply mutatis mutandis to the petition of appeal is that the petition of appeal allows the performance of the functions as the briefs. Therefore, the issue of whether to enter the "matters to be entered in the briefs" in the petition of appeal is the matter of choice of the appellant, and it does not affect the validity of the petition of appeal even though the "matters to be entered in the petition of appeal" are not stated in the petition of appeal. If it is interpreted as the necessary matters to be stated in the petition of appeal, it cannot be said that there is a relatively short necessary matter to be entered in the petition of appeal, such as the period of appeal.

Therefore, even if the address of the appellee is not specified in the petition of appeal at the time of filing the petition of appeal, the petition of appeal is legitimate. Therefore, at the time of receiving the petition of appeal, the presiding judge cannot order the appellant to revise the address of the appellee by entering the address of the appellee in the petition of appeal. However, it is contradictory that the appellate court may order the appellant to correct the address of the appellee on the ground that the appellant should have entered the address of the appellee properly in the petition of appeal only when it comes to the time when the appellate court attempted to serve a duplicate of the petition of appeal but became impossible to serve a copy of the petition of appeal.

Article 274(1)1 of the Civil Procedure Act provides that a party’s address is one of the matters to be entered in the briefs, but this is nothing more than a clause specifically stipulated in practical practice. The purport of allowing the party’s address to be entered in the briefs is to specify the party and serve the briefs. However, barring any special circumstance, in the phase in which the briefs are submitted, the specific nature and service of the party is not an issue, barring any special circumstance. The service of the briefs is sufficient for the court to execute the briefs as prior to their submission. Accordingly, there are no practical cases where the party’s address is entered in the briefs. This is the same as in the case of a duplicate of the petition of appeal. This is true in the case of a duplicate of the petition of appeal. This is not the case where the party’s address is not a problem at the stage of submitting the petition of appeal, but it is sufficient for the court to serve a copy of the petition of appeal as having been served prior to the filing of the petition of appeal. Considering this point, it is unreasonable to interpret that the petition should apply mutatis mutandis

4) In a case where a duplicate of the petition of appeal is impossible to be served, the presiding judge of the appellate court may take measures to confirm the place of service by the appellee by himself/herself, and if the place of service by the appellee cannot be any longer known even after taking such measures, the presiding judge of the appellate court may decide the duplicate of the petition of appeal by public notice pursuant to Article 194(3) and (1) of the Civil Procedure Act, but the appellate court’s interpretation that the appellate court may issue an order to rectify address to the appellant and that

Since the first instance judgment against the appellant becomes final and conclusive when an order to dismiss the petition of appeal becomes final and conclusive, it becomes a serious disadvantage to the appellant under the Civil Procedure Act. However, the presiding judge of the appellate court may take necessary measures to confirm the place where the appellant is to be served, such as direction of lawsuit, verification of address on the record, entrustment of investigation, etc., as seen below (see Article 194(3) and (1) of the Civil Procedure Act), and where the place where the appellant is served is unknown even if all such measures are taken, a copy of the petition of appeal may be ordered to be served to avoid delay in the lawsuit (see Article 194(3) and (1) of the Civil Procedure Act). In practice, the presiding judge of the appellate court may not be deemed superior to the information collected by the appellant by himself/herself when a duplicate of the petition of appeal is not served on the appellant. In such cases, where a duplicate of the petition of appeal is impossible, the presiding judge of the appellate court may decide whether to issue an order to correct the address to the appellant, or whether the appellant is served on the presiding judge’s own discretion.

(C) As seen earlier, in a case where the appellate court rendered a final and conclusive judgment without knowing the fact that the appellate court commenced by serving a duplicate, etc. of the petition of appeal as seen earlier, the appellant is the length to recover his/her interests in the lawsuit by subsequently completing the appeal. On the other hand, in a case where a duplicate of the petition of appeal is unable to be served as a copy of the petition of appeal as seen in the Majority Opinion, if the appellant issues an order to rectify address and dismiss the petition of appeal if he/she refuses to comply with such order, the

As such, if a duplicate of the petition of appeal is impossible to be served, it goes against the principle of proportionality under the Constitution to interpret that the order to correct address, which is only a measure unfavorable to the appellant, may be issued only in the absence of a plan to harmonize the interests of the appellant and the appellee in the lawsuit.

5) In light of the fact that the electronic litigation system of a civil lawsuit was established on the premise that the litigants should take measures to receive a service by themselves, it is unreasonable to view that the appellant bears the responsibility to correct the Appellants’ address.

Article 11(1) of the Act on the Use, etc. of Electronic Documents in Civil Procedure, Etc. provides that electronic service shall, in principle, be made by registering users in the electronic information system and by sending text messages to persons who have agreed to the electronic lawsuit. Paragraph (3) provides that "Electronic service shall be made by registering electronic documents to be served on the electronic information processing system and electronically notifying the persons who have been served the electronic documents," and Paragraph (4) provides that "in case of electronic documents, it shall be deemed to have been served on the person who has served the electronic documents: Provided, That if it is not confirmed within one week from the date of notification of the registration, it shall be deemed to have been served on the date one week from the date of notification of the registration." Furthermore, Article 26(1) of the Rules on the Use, etc. of Electronic Documents in Civil Procedure, which was enacted upon delegation of the above Act, provides that "the notification of the registration of the electronic documents shall be sent to electronic mail addresses entered by the registered users in the electronic litigation system, and text messages shall be sent to mobile phone numbers."

Electronic mail address and mobile phone number are essential information for electronic service, which must be entered in the electronic information system by a person subject to electronic service at the time of user registration. If a person subject to electronic service did not change the electronic mail address and mobile phone number even if the person subject to electronic service but did not change the electronic mail address and the mobile phone number, and thus electronic notice was given to the former mobile phone number and e-mail address, the validity of electronic service is recognized. As can be seen, the electronic litigation system was established on the premise that litigation parties should take measures to be able to receive electronic notice by themselves. The risk of not receiving electronic notice is borne by the person subject to electronic service and the risk is not transferred

Therefore, if the appellant is a person to receive electronic delivery, it does not occur if the appellant is unable to serve a duplicate of the petition of appeal due to the reason that the appellee is the place of service of the appellee. Even though the appellee changed the e-mail address and the mobile phone number, it is presumed that the duplicate of the petition of appeal is de facto impossible to serve a copy of the petition of appeal, which is premised on the Appellant’s responsibility. As a result, the appellant does not bear any risk of being issued an order to dismiss the petition of appeal due to the impossibility of serving a duplicate of the petition of appeal. However, according to the existing precedents, if the appellant is not a person to receive electronic delivery, the appellant bears any risk of being issued an order to dismiss the petition of appeal due to the impossibility of serving a duplicate of the petition of appeal. Whether the duplicate of the petition of appeal, which is the appeal, is to be received by electronic delivery, is irrelevant to the appellant. It is unreasonable to completely change whether the appellant bears the risk of rejection of the petition of appeal

6) The existing precedents declared by the Supreme Court are inconsistent with the current practice of the Supreme Court that serve the duplicate of the petition of appeal.

Article 425 of the Civil Procedure Act provides, “The provisions of Chapter I shall apply mutatis mutandis to the proceedings of final appeal and the proceedings of final appeal, except as otherwise provided. Accordingly, Article 402 of the Civil Procedure Act concerning the right to examine a petition of appeal shall apply mutatis mutandis to the proceedings of final appeal. In other words, Article 402 of the Civil Procedure Act is commonly applied to both the examination of a petition

However, the current practice of the Supreme Court does not issue an order to correct address to appellant when a duplicate of the petition of appeal is not served with Appellee, and accordingly, does not issue an order to dismiss the petition of appeal on the ground that the order to correct address is not complied with. The Supreme Court finally serves a duplicate of the petition of appeal by service or service by public notice. The Supreme Court declares through the previous precedents that an appellate court should issue an order to correct address when a duplicate of the petition of appeal is unable to be served and dismiss the petition of appeal. While the Supreme Court declares that an appellate court is obliged to issue an order to dismiss the petition of appeal in the event of being served with the duplicate of the petition of appeal, it appears contradictory attitude that the Supreme Court requests the lower court to render a judgment not being served with itself. Whether the citizens can understand the conflicting

However, the meaning and importance of the Civil Procedure Act that requires the delivery of a duplicate of a petition of appeal to a tax-exempt is the same as the case where the duplicate of a petition of appeal is served with a duplicate of a petition of appeal.Appellee may also participate in the final appeal procedure by being served with a duplicate of a petition of appeal within 10 days from the date of receiving a duplicate of the petition of appeal (Article 428(2) and (1) of the Civil Procedure Act), and written reply is used as a review material of the final appeal court (Article 430 of the Civil Procedure Act). Inasmuch as Appellee is not an unfavorable case to Appellee even if the duplicate of the petition of appeal is not served with a usual method, it is argued that the delivery of a duplicate of the petition of appeal and the delivery of a duplicate of the petition of appeal are a different type.

The majority opinion is based on the fact that Article 402 of the Civil Procedure Act concerning the right to review a petition of appeal provides the same content as that of Articles 255 and 254 concerning the right to review a petition of appeal. However, it is more clear that Article 402 of the Civil Procedure Act applies to an appellate court and a final appeal.

7) Since service is conducted ex officio by the court, it cannot be deemed as a national aspect to which the principle of pleading and partyism apply.

Article 174 of the Civil Procedure Act provides, “Service shall be made ex officio by the court, except as otherwise provided for in this Act.” This is intended to secure stability and certainty in the civil procedure by prompt, appropriate, and clarifying the service in civil procedure. The principle of pleading and party principle, which is the basic ideology of civil procedure, do not have any relationship with the service of documents in civil procedure. Therefore, on the part of the country where the duplicate of the petition of appeal is impossible, the appellant cannot be responsible for correcting the address of the respondent on the ground of the principle of pleading and party principle. If service is made once as the duty to be borne by the court, the court shall continue service, and the burden of service shall not exceed the appellant.

The issues of this case are not to eliminate any disadvantage in the lawsuit due to the lack of capacity to serve a duplicate of the petition of appeal between the court and the party to the lawsuit in a situation where it is impossible to serve a duplicate of the petition of appeal, or due to the lack of capacity to perform the lawsuit by the appellant. In a case where the duplicate of the petition of appeal is impossible to serve a duplicate of the petition of appeal, it is not related to the lack of capacity to perform the lawsuit by the appellant.

C. In full view of the discussions so far, if a duplicate of the petition of appeal is impossible to be served, the proceedings of the appellate court will proceed as follows.

1) Under Article 402(1) and (2) of the Civil Procedure Act, the presiding judge of the appellate court may not order the appellant to revise the address of the appellee, and accordingly, may not order the appellant to dismiss the petition of appeal on the ground of such violation.

2) However, the presiding judge of the appellate court needs to exert the best endeavors as follows so that a duplicate of the petition of appeal may be served on the appellant in a fair, swift, and economical way (Article 1(1) of the Civil Procedure Act). The presiding judge of the appellate court may request the appellant to provide cooperation necessary to confirm the place where the appellant is served, or to recommend the appellant to correct his/her address, through the direction of appropriate litigation, etc. In addition, the presiding judge of the appellate court shall attempt to deliver a duplicate of the petition of appeal to other address than the address of the appellant stated in the petition of appeal or the written judgment, if any address other than the address of the appellant is in the court record (see, e.g., Supreme Court Order 2014Ma4026, Apr. 16, 2014). Meanwhile, the appellant may request the appellate court to entrust the investigation deemed necessary to correct the address at the appellate court (see, e.g., Supreme Court Order 2014Ma2282, Jul. 7, 2015).

3) In a case where the service place of the respondent is no longer known even though the presiding judge made the best effort to serve a duplicate of the petition of appeal, it is sufficient to serve the duplicate of the petition of appeal by public notice (Article 194 of the Civil Procedure Act). This is because the result of such efforts does not lack to confirm the requirements for service by public notice to the appellee. Accordingly, the appellate trial may proceed.

However, even if the appellant was served with the document of appeal at the court of first instance, the appellate court's decision that the place cannot be deemed to be "the place where the document of lawsuit was served" under Article 185 (2) of the Civil Procedure Act, unless the document of lawsuit was served at the appellate court (see Supreme Court Decision 2011Da85796, Jan. 12, 2012). Thus, the issue of whether the document of appeal can be served by sending the copy of the petition of appeal shall be excluded from the issue. However, as seen earlier, the Supreme Court's practice points out only that the copy of the document of appeal is served by sending the document of appeal or by serving the document of appeal by posting the document of final delivery

4) Afterward, the appellant was served not only by a duplicate of the petition of appeal, but also by a service of public notice, such as a notice of the date for pleading, and the original judgment was also served by public notice and finalized.

In the absence of special circumstances, the appellant may be deemed to have been aware of the fact that the appellate procedure had been in progress. This constitutes a case where the appellee was unable to observe the peremptory period due to a cause not attributable to him/her, and thus, he/she may subsequently complete the procedure within two weeks from the date such cause ceases to exist (within 30 days where such cause ceases to exist in a foreign country at the time that such cause ceases to exist) (see, e.g., Supreme Court Decision 95Da21365, May 30, 1997).

5) If the appellant subsequently completed the appeal for the foregoing reason, the appellee is deemed to have infringed upon the rights conferred by the procedure as a party. In such a case, the provisions of Article 424(1)4 of the Civil Procedure Act may apply mutatis mutandis to the case where a party was not represented legally by an agent. As such, the appellate court shall reverse ex officio the appellate court’s judgment (see, e.g., Supreme Court Decision 95Da21365, May 30, 1997). Accordingly, the procedural status of the appellee may be balanced and protected.

6) However, the case where a petition of appeal for subsequent completion is submitted is different. The situation where a petition of appeal for subsequent completion has been submitted is different. It is difficult to expect that a lawsuit for subsequent completion has been completed, rather than the status where a lawsuit for subsequent completion has been pending, and that an appellant may file an appeal for subsequent completion. Therefore, where a petition of appeal for subsequent completion is unable to be served on the appellee, it is difficult to proceed with the procedure premised on the continuation of the lawsuit. Therefore, the petition of subsequent completion should state the address of the appellee corresponding to the complaint, and where it is impossible to serve a duplicate of the petition of subsequent completion, it is reasonable to interpret that the petition of subsequent completion may be dismissed unless the appellant revises it.

D. The grounds cited in the Majority Opinion are briefly opposed to the foregoing.

1) The Majority Opinion deems that the existing precedents conform to the interpretation of Article 402(1) and (2) of the Civil Procedure Act.

However, as seen above, Article 402(1) of the Civil Procedure Act does not directly stipulate whether an appellant may be ordered to correct the address of the appellee in the event that a duplicate of the petition of appeal is impossible to be served, and the address of the appellee is not necessary to be stated in the petition of appeal. In addition, Article 402(1) and (2) of the same Act, which is the provision of the same Act, shall apply mutatis mutandis to the service of a duplicate of the petition of appeal, but the current practice of the Supreme Court is served by delivery or service by public notice. In light of this, it is doubtful whether the Majority Opinion’s position conforms to Article 402(1) and (2) of the Civil Procedure Act

2) As to the meaning of the existing precedents, the Majority Opinion states that the meaning of the sanction against the appellant for failing to meet the minimum requirements necessary for the proceeding of the appellate trial, and that the order to rectify address does not impose an excessive burden on the appellant, and that the order to dismiss the petition of appeal is merely a prior notice given in the order to correct address.

However, the issue of this case is irrelevant to the issue of this case. The issue of this case is whether an order to correct the address may be issued to the appellant for reasons of impossibility of being served with a duplicate of the petition of appeal. We discuss whether the order to correct the address can be implemented on the ground of impossibility of being served with a duplicate of the petition of appeal. This is an area outside other areas. It does not mean that the appellant can easily implement the order to correct the address. It does not serve as a ground for the appellant to have the obligation to correct the address.

In addition, as seen earlier, the address of the appellee is not necessary to be stated in the petition of appeal, and the appellant is not obligated to inform the appellate court of the address of the appellee. Therefore, the previous precedents are merely imposing sanctions on the ground of the breach of the obligation not borne by the appellant.

In practice, the existing precedents cannot be justified only because the order to dismiss the petition of appeal is notified in advance of the order to correct the address. This is because the demand of the appellant to do an unobligatory act itself is unfair, and the unfair demand cannot be justified only because the notice of sanction was given in advance of unfair demand.

The Majority Opinion states that the right to receive a judgment in an appellate trial is not included in the constitutional right to a trial. However, it is evident that a party to a lawsuit that has lost in the first instance pursuant to Article 390 of the Civil Procedure Act has the right to appeal. The Majority Opinion that a judgment against the first instance may become final and conclusive by an order to dismiss a petition of appeal on the ground that the appellant did not comply with the order to rectify his/her address even though the appellant does not have a duty to correct the address.

3) The Majority Opinion also accords with the future development direction in order to faithfully realize the judgment of the first instance court and to operate the appellate court close to the ex post facto trial.

However, there is no relationship between the instant issues and the instant judgment of the first instance court. In the event that a duplicate of the petition of appeal is impossible to be served, the first instance court’s judgment is to be faithfully rendered by ordering the rejection of the petition of appeal on the grounds of non-compliance with the order to rectify address, as stated in the Majority Opinion, and it cannot be concluded that the first instance judgment is to proceed with the appellate trial. On the contrary, the first instance court’s judgment should be faithfully rendered regardless of whether to dismiss the petition of appeal on the grounds of non-compliance

The majority opinion argues to the effect that the order to correct address due to the impossibility of delivering a duplicate of the petition of appeal and that such order is a system to prevent the appeal against the other party, but there is no relation between the suppression of appeal against the other party and the order to revise address and its objection, and the order to dismiss the petition of appeal shall not be operated to such purport.

E. 1) It is inferred that the legal principles of the existing precedents have been maintained for a long time in practice without any particular question is attributable to the following perspective or concept. In other words, there is a view that the order to correct address due to the impossibility of delivering a copy of the petition of appeal and the procedure of the order to dismiss the petition of appeal following the refusal is very similar to the procedure of the order to correct address due to the impossibility of delivering a copy of the petition of appeal and the rejection of the petition of appeal following the refusal of the order to dismiss the petition of appeal. In addition, the appellant is the active party of the appellate court, who is in the position of the first instance court

2) However, the foregoing view or concept is based on the fact that the process of submitting a duplicate of the petition of appeal has already been established and the delivery of the documents of lawsuit to the litigants is a situation where the delivery of the documents of lawsuit has been lawfully made. Unlike the Plaintiff before the continuation of lawsuit is not yet served due to the lack of a duplicate of the petition, the appellant is a party to the lawsuit who has undergone the first instance trial proceedings after the continuation of lawsuit occurred. In the first instance trial proceedings, the previous documents of lawsuit by the Appellants were lawfully served to the Appellants, and the documents of lawsuit by the Appellants are also served to the Appellants. Therefore, the status of the Appellants and the status

The service of a duplicate of the petition of appeal is merely a part of the service of the documents of lawsuit while the lawsuit is pending, and thus, if the duplicate of the petition of appeal is not served, it would be different from the service of the documents of lawsuit during the proceeding of the lawsuit. If the preparatory documents are not served by the ordinary service method during the proceeding of the lawsuit, it would be sufficient to proceed with the procedure of the appellate court by serving the documents of lawsuit as in the case of preparatory documents, even where the duplicate of the petition of appeal is not served by the ordinary service

In addition, an order to dismiss a complaint and an order to dismiss a petition of appeal are identical in that "no longer proceed with a lawsuit in this state," but the substantial meaning of both parties is significantly different. In other words, an order to dismiss a petition of appeal means "a lawsuit shall be renewed again," but the order to dismiss a petition of appeal means "no longer dispute," and both are different judgments to the extent that it is impossible to prepare." Therefore, the time when the order to dismiss a petition of appeal and the order to dismiss a petition of appeal are issued as a similar system is not considered to have the essential difference between the above two trials.

3) In practice, the presiding judge of the appellate court has a tendency to judge whether to issue an order to dismiss the petition of appeal on account of the impossibility of delivering a duplicate of the petition of appeal. Unlike the order to dismiss the petition of appeal, it seems that the order to dismiss the petition of appeal is aware that it has the effect of closing the proceedings. This practical tendency seems to show well the problems of the legal principles of the existing precedents. It is predicted that this practice is not to clearly show that “any problem arises in the existing practice, even though it is unclear what is due to the impossibility of delivering a duplicate of the petition of appeal.” This is, however, the practice of the Supreme Court seems to exclude the order to correct the address and the order to dismiss the petition of appeal on account of the impossibility of delivering a duplicate of the petition of appeal.

F. In full view of the discussions above, where a duplicate of the petition of appeal is impossible to be served, the appellate court presiding shall modify all of the Supreme Court Decisions 68Ma1029 Decided September 24, 1968; 71Ma317 Decided May 12, 1971; 71Ma317 Decided May 12, 1971, etc. to the effect that the appellate court presiding shall order the appellant to correct the address pursuant to Article 402(1) and (2) of the Civil Procedure Act, and that the appellant shall dismiss the petition of appeal by order if the appellant fails to comply

The presiding judge of the court below of this case ordered the re-appellant to revise the address of the respondent due to the impossibility of serving a duplicate of the petition of appeal of this case. In addition, the court below's order to dismiss the petition of this case on the ground that the re-appellant did not correct the address of the respondent within the period stipulated in the order to correct address.

For the foregoing reasons, we express our concurrence with the Majority Opinion.

6. Opinion concurring with the Majority Opinion by Justice Min You-sook, Justice Kim Seon-soo, and Justice Noh Tae-ok

A. However, apart from the need for legislative resolution on the matter, the approach taken by the Dissenting Opinion goes beyond the natural scope of interpretation in accordance with the legal language and text. hereinafter the Dissenting Opinion’s argument cited by the Dissenting Opinion is to be inconsistent with the necessary scope.

1) According to the Dissenting Opinion, first of all, the service of a duplicate of the petition of appeal is merely a part of the service of documents of lawsuit while the lawsuit is pending, and thus, if the duplicate of the petition of appeal is not served, it shall be treated equally with the case where another document of lawsuit is impossible to

However, when a duplicate of the petition of appeal is served on the appellee, the relationship between the appellate court and the parties exists, and thereby the presiding judge of the appellate court may no longer issue an order to dismiss the petition of appeal on his/her own (see Supreme Court Order 2019Ma5599, 5600, Jan. 30, 2020).

As such, the appellate court’s establishment of litigation relations between the parties and the appellate court’s subsequent procedures are different under the Civil Procedure Act, so it is difficult to view the entire appellate court’s procedure as an extension of the first instance trial procedure. Therefore, the impossibility of delivery of a copy of the petition of appeal and that of delivery of other litigation documents during the pending litigation is not

The fact that it is difficult to regard the appellate court procedure as a simple extension of the first instance trial procedure may be confirmed at several pages in relation to service. For instance, the scope of attorney's right of attorney is limited to the corresponding instance, barring any special circumstance (see, e.g., Supreme Court Decision 93Da52105, Mar. 8, 1994) and the effect of a report on the recipient of the service at the first instance trial does not extend to the appellate court (see, e.g., Supreme Court Decision 2017Da52064, Apr. 12, 2018). Even if the appellant appointed a legal representative at the first instance court or reported the recipient of the service, the attorney's right of attorney at the first instance court shall, in principle, be extinguished, and the validity of the report, which is the receipt of the service at the first instance court, shall also be extinguished, unless there are special circumstances.

In addition, Article 185(2) of the Civil Procedure Act provides that if a party fails to report the purport of changing the place where a service is to be made, it may be sent in such a way as prescribed by the Supreme Court Regulations at the previous place where the service is to be made. Thus, even if the party reported it to the place where service is to be made, it cannot be viewed as "the place where service is previously made" under Article 185(2) of the Civil Procedure Act, unless there is no delivery at the place where service is to be made (see, e.g., Supreme Court Order 2005Ma

Furthermore, even if the appellant was served with the document of lawsuit in the first instance, such place may not be deemed to fall under “the place where the document of lawsuit was previously served” under Article 185(2) of the Civil Procedure Act, unless the appellate court received the document of lawsuit (see Supreme Court Decision 2011Da85796, Jan. 12, 2012). If so, considering that a duplicate of the petition of appeal is a document of lawsuit being served first on the appellant at the appellate court, a duplicate of the petition of appeal is a document of lawsuit that cannot be served on the appellant pursuant to Article 185(2) of the Civil Procedure Act. In this regard, the service of a duplicate of the petition of appeal is different from the service of other document of lawsuit while the lawsuit is pending.

In short, since the new appellate procedure, which is the first instance, commences from the time when the petition of appeal was submitted, it is natural that the service impossibility of a duplicate of the petition of appeal, which is being served at the appellate court, should be treated differently from the service impossibility of other documents of lawsuit

2) The Dissenting Opinion argues that the appellant has a duty to take appropriate measures so that the appellee can receive a proper delivery of a duplicate of the petition of appeal, so the Appellant is liable for not being served with a duplicate of the petition of appeal.

However, the parties to a lawsuit cannot be deemed to have a duty to report general service place under the Civil Procedure Act. A lawsuit document is sent to the parties who violated the duty to report the change of service place (Article 185 of the Civil Procedure Act). Moreover, the Appellant can find the commencement of the appellate procedure by receiving a duplicate of the petition of appeal. Moreover, the Appellant cannot be deemed to have a duty to take measures, such as reporting the place of service or the recipient of the service, in advance, in preparation for the fact that the winning

In a case where the first instance court, as in the instant case, had a legal representative for the party to the lawsuit, failed to directly serve the documents of lawsuit on the party to the lawsuit, the court held that the party to the lawsuit was not in violation of the obligation to report the change of the place of service under Article 185(1) of the Civil Procedure Act (see, e.g., Supreme Court Decision 2001Da30025, Sept. 7, 2001). Considering such fact, it is difficult to deem that the party to the lawsuit has a general obligation to take appropriate measures so that the duplicate of the petition of appeal can be served properly.

3) The Dissenting Opinion argues that an order to dismiss a complaint and an order to dismiss a petition of appeal are essentially different from that of a case where a duplicate of a complaint is impossible to be served, it may issue an order to correct the address to the Plaintiff and dismiss the complaint when the Plaintiff failed to comply with this order. However, if the duplicate of the petition of appeal

However, there is a difference between the order to dismiss a complaint and the order to dismiss a petition of appeal because there is an important difference between the court of first instance and the appellate court as to the existence of a final judgment, which is the judgment of the court of first instance. Due to such difference, the degree of disadvantage in the lawsuit due to the dismissal

The text of Articles 255 and 254 of the Civil Procedure Act concerning the case where a duplicate of the complaint is impossible to be served, and the text of Articles 401 and 402 concerning the case where a duplicate of the petition of appeal is impossible to be served, are the same. The above provision of the Civil Procedure Act provides that the presiding judge shall issue an order of rejection when the party ordered to make correction and the party ordered to make correction fails to comply therewith.

However, the Plaintiff at the stage of submitting the petition of appeal is an uncertain party, but the appellant at the stage of submitting the petition of appeal is a party who has already lost by the judgment of the court of first instance. Since the intrinsic difference between the Plaintiff at the stage of submitting the petition of appeal and the appellant at the stage of submitting the petition of appeal is the existence of the judgment of the court of first instance, it is natural that there is a difference in

If the plaintiff who wants to commence a lawsuit fails to perform his/her duty of correction of the defendant's address, he/she cannot commence the lawsuit as desired, and if the appellant who wants to reverse the judgment of the first instance fails to perform his/her duty of correction of the defendant's address, the appellate court may not commence the proceedings as desired. Therefore, it is not possible to issue an order of correction of address and rejection of the petition of appeal against the appellant, on the ground that the result of the order of rejection of the complaint differs in the litigation process.

4) The Dissenting Opinion argues that Article 402(1) of the Civil Procedure Act does not directly stipulate whether the appellant may be ordered to correct the address of the appellee where a duplicate of the petition of appeal is impossible to be served.

However, since Article 402 (1) of the Civil Procedure Act does not specify the cause for which a duplicate of the petition of appeal is impossible to be served separately, if the cause for failure to serve is the ‘resident of the respondent', the appellant should interpret the ‘resident's address of the respondent.

5) The Dissenting Opinion argues that even though the appellate court presiding may serve a duplicate of the petition of appeal by public notice, ordering the appellant to revise the address and ordering the rejection of the petition of appeal when the appellant fails to comply with it is contrary to the principle

However, in principle, service by public notice may be deemed a case where the place of service of the appellant is unknown (Article 194(1) of the Civil Procedure Act), and in order to determine whether the place of service of the appellee is a case where the appellee is unknown when a duplicate of the petition of appeal is not served, it is necessary to first confirm the address of the appellee. A duplicate of the petition of appeal appears to have been served at the place of service of the appellee or the address of the appellee indicated in the record, but it cannot be readily concluded that the place of service of the appellee cannot be known unless a duplicate of the petition of appeal is served at the place of service of the appellee or the address of the appellee at the stage of not being served on the appellant due to unknown cause, etc. In such a case, it can be deemed that the place of service cannot be seen as a case where the place of service is unknown unless a change in address is confirmed, but it cannot be said that the place of service cannot be seen as a case where the appellant’s present address is unknown prior to confirming the date of service of the appellant’s address.

Furthermore, the principle of proportionality or the principle of proportionality under the Constitution refers to the limits to be observed when the State restricts the fundamental rights of the people pursuant to Article 37(2) of the Constitution. The Dissenting Opinion’s rationale for the principle of proportionality under the Constitution is as follows: (a) based on the principle of proportionality under the discretion of the presiding judge of the appellate court, referring to the phenomenon in which only the appellant is at an excessive disadvantage in the lawsuit; and (b) generally, the means to achieve the principle of proportionality should be appropriate for the intended purpose; (c) infringement of private interests should be minimized; and (d) reasonableness between public interests and private interests should be recognized.

The dissenting opinion is premised on the balancing of interests between the appellant who is a private person and the appellee, which seems to be based on the awareness that the disadvantage in the lawsuit given to the appellant is excessive compared to the appellee.

However, as seen earlier, since it cannot be readily concluded that the appellant fails to revise the address of the appellee, the situation where service by public notice can be conducted, and the situation where the order to dismiss the petition of appeal may be issued, is not essentially the same. Therefore, even if the appellate court presiding judge issued an order to dismiss the petition of appeal on the grounds that the appellant did not serve a duplicate of the petition of appeal when a duplicate of the petition of appeal is impossible, and the appellant did not comply with the requirements and procedures stipulated in statutes and issued an order to correct the address to the appellant, and the appellant did not comply with such order, it cannot be deemed that one of the selected methods is arbitrary in the same situation. Therefore, we cannot agree with the Dissenting Opinion

6) The Dissenting Opinion argues that the electronic litigation system of civil procedure was established on the premise that the litigants should take measures to ensure their own delivery, and it is unreasonable to view that the appellant bears the responsibility to correct the address of the Appellants.

However, even if the proceedings of the first instance court were to be conducted by electronic litigation, a duplicate of the petition of appeal may arise if it is impossible for the appellant to serve a copy of the petition of appeal. This is because in the first instance court, only the appellant’s attorney consented to the electronic litigation and served the electronic document on his/her attorney, and if the appellee did not consent to the electronic litigation, the duplicate of the petition of appeal cannot be served electronically on the appellee. It is not because the appellant’s consent to the electronic litigation is merely because the risk of not receiving the electronic notice is that the appellant did not properly enter his/her mobile phone number and e-mail address in the electronic information system.

7) The Dissenting Opinion is inconsistent with the Supreme Court’s practice concerning the service of a duplicate of the petition of appeal.

However, in a case where the Supreme Court served a duplicate of a petition of appeal even if the requirements for delivery of the petition were not satisfied, if the service of the copy of the petition of appeal and the notice of receipt of the records of appeal were to be deemed null and void, the service of the petition of appeal should be deemed null and void. In a case where the service of the notice of receipt of the records of appeal was unlawful, the Supreme Court erred by omitting judgment on important matters affecting the judgment, which dismissed the appeal without examining the appellant’s grounds of appeal on the grounds that the service of the notice of receipt of the records of appeal was not filed within the submission period based on the date of the service, on the grounds that the service of the notice of receipt of the records of appeal was lawful, and thus, it constitutes grounds for retrial falling under Article 451(1)9 of the Civil Procedure Act (see Supreme Court Decision 2010Du127, Sept. 9, 2010). However, even if the service was not met at the time of subsequent determination, it cannot be accepted as the grounds for the Dissenting Opinion on this point.

The court of final appeal may render a judgment as a legal court without oral pleadings (Article 430(1) of the Civil Procedure Act), and the parties to a lawsuit may not submit new arguments or evidence to the court of final appeal in accordance with the nature of the structure of the court of final appeal. The judgment dismissing a petition of final appeal and the judgment dismissing a petition of final appeal is final and conclusive, and litigation procedures are final and conclusive. In addition, when a judgment is rendered without oral pleadings at the end of the period for filing a petition of final appeal (see, e.g., Supreme Court Decision 2013Da69866, Jul. 9, 2015). The fact that the practice of delivering a copy of the petition of final appeal is formed in accordance with the nature of the structure of the court of final appeal, and the practice of the Supreme Court is not inconsistent with the current Supreme Court. In short, on the ground that the Supreme Court has established a practice of serving ex officio a copy of the petition of final appeal by public notice in line with the nature of the structure of the court of final appeal as seen earlier and the presiding judge fails to comply with the order.

8) The Dissenting Opinion argues that, where a duplicate of the petition of appeal is unable to be served, if it is impossible for the appellate court to identify the place where the respondent was served, the duplicate of the petition of appeal shall be served by means of service by public notice and the appellate court shall proceed with the appellate trial. Accordingly, the appellant who had known the progress of the appellate trial may file a subsequent appeal. In this case, the appellate court shall reverse ex officio the judgment of the appellate court, and thus, the interests of both parties in the lawsuit may be harmonized.

However, in cases where a duplicate of a complaint is impossible to be served and where a duplicate of the petition of appeal is impossible to be served, the same legal provision that the presiding judge shall issue an order of correction and an order of rejection respectively is identical, but if each of the orders of correction is not complied with, it shall be deemed that the presiding judge goes against the legislator’s intent to take measures that can be taken by him/her is different. In cases where a duplicate of the petition of appeal is impossible to be served as a copy of the petition of appeal as stated in the Dissenting Opinion, unlike the case where a duplicate of the complaint is impossible to be served, the appellate court cannot issue an order of correction and dismissal,

If the system is operated as stated in the Dissenting Opinion, the judicial resources are wasteed and additional expenses are incurred in the course of proceedings such as the ex officio delivery of a duplicate of the petition of appeal, the confirmation of the appellate court's judgment, the completion of the appeal, the reversal and return of the appeal, etc. As such, there are side effects that fall under the efficiency and economic feasibility of the proceedings. If the appellate court judgment becomes the executive title of the appellant against the appellant, there are many cases where the appellant is required to deposit cash in order to suspend compulsory execution based on the appellate court's judgment in practice, and the costs, such as bearing interest, may accrue to the appellant.

Under the premise that the judgment of the appellate court became final and conclusive, the legal stability will also be damaged if the judgment of the appellate court can be reversed later.

It is also desirable to induce the appellate court to serve a duplicate of the petition of appeal on the basis of the correction of address, which is the minimum effort of the appellant, in terms of the efficiency and economic feasibility of the proceedings.If it is impossible to serve a duplicate of the petition of appeal even though the correction of address was taken, it should be served by service of public notice. However, if it is not possible to serve a duplicate of the petition of appeal, it should be served on the appellant by means of service. In this case, even in this case, the re-appellant is required to submit only a copy of the petition of appeal issued by the appellant upon receipt of the order to correct address and submit it to the appellate court, or at least when he files an application for inquiry about the address of the appellee at least, the duplicate of the petition of appeal of this case did not interfere with serving

B. We need to consider the scheme for institutional reform in the civil procedure procedure, which is based on the principle of partyism and pleading.

1) It is evident that the appellant has a minimum obligation to take measures necessary to serve a duplicate of the petition of appeal pursuant to Article 402 of the Civil Procedure Act. The service of a duplicate of the petition of appeal on the appellee is a minimum condition to proceed with the appellate trial. If no duplicate of the petition of appeal is served because the lawful place of service cannot be known, it is necessary to confirm the address, etc. (in the case of a corporation, the address, location of the representative, etc. on the certificate of registration of the corporation) of the appellee as of the date of the appeal. In such a case, the Civil Procedure Act provides a system to enable the appellant to verify the address of the appellee and to impose sanctions against rejection of the petition of appeal in order to ensure the effectiveness of imposing such obligation. In short, the presiding judge ordering the appellant to correct the address of the appellant cannot be deemed as compelling the appellant to rectify the date on which the appellant is not obliged to serve a duplicate of the petition of appeal, and thus, the order of correction and rejection of the petition of appeal pursuant to Article 20 of the Civil Procedure Act is a delay in the appellate trial (see Article 202 of the Civil Procedure Act).

2) In a litigation system, the risk of causing disadvantages in the litigation due to the lack of capacity of the parties to the lawsuit to perform the litigation in a timely manner is likely to be incurred due to the lack of capacity of the parties to the lawsuit. If the appellant is subject to an order of correction of address due to the impossibility of serving a duplicate of the petition of appeal, but fails to take necessary measures for correction of address due to the lack of capacity to perform the lawsuit, he/she may lose the opportunity to undergo a trial at the appellate court by receiving an order of rejection of the petition of appeal. It may be necessary to respond to the side effects arising from the lack of capacity of the parties to the lawsuit. The Dissenting Opinion appears to have attempted to de facto revise

3) However, with a view to preventing the party to a lawsuit from incurring any disadvantage due to the lack of capacity to perform the litigation, the court may not have any question about whether it is appropriate to intervene in guardianship for the benefit of one of the party to the lawsuit through the interpretation theory. It is not possible to relieve all anticipated disadvantages that the party to the lawsuit may sustain due to the lack of capacity to perform the litigation through the interpretation theory. It seems clear that strengthening the guardianship role of the party to the lawsuit through the unreasonable interpretation theory beyond the basic ideology of the current civil procedure is not desirable from the perspective of institutional improvement.

It is not a court that has a direct interest in the final outcome of a civil lawsuit. A civil lawsuit is initiated according to the intention of the parties to the lawsuit, is deliberated by the data submitted by the parties to the lawsuit, and is initiated by the involvement of the parties to the lawsuit. If it is impossible to serve a duplicate of the petition of appeal, it takes into account the principle that imposing on the appellant the obligation to confirm the present address of the appellant because the place of service by the appellant cannot be known any more, should also be conducted by the appellant. The preparation of the method of imposing the order to dismiss the petition of appeal in order to secure the effectiveness of imposing the above obligation on the appellant in the lawsuit is a legislative decision for the fair treatment of both parties as a result of the reduction of the interest of both parties in the lawsuit.

Because of the lack of capacity of the parties to a lawsuit, the problem that is disadvantaged in the course of the lawsuit is the right response to the improvement of the system so that the legal aid system can be greatly expanded so that the attorney-at-law assistance can be obtained and the attorney-at-law forced to a certain extent can be introduced to the extent that it can faithfully support and supplement the litigation capacity of the parties to the lawsuit. In addition, this direction conforms to the civil procedure procedure that provides for the principle of partyism and the principle of pleading. In addition, the lower court's appeal rate should

As above, I express my concurrence with the Majority Opinion.

April 22, 2021

Justices Park Sang-ok

Chief Justice Lee Dong-won

Justices Kim Jae-in

Justices Park Il-san

Justices Noh Jeong-chul

Justices Min Min-young

Justices Kim Gin-soo

Justices Lee Jae-hwan

Justices Noh Jeong-hee

Justices Kim In-bok

Justices Noh Tae-ok

Justices Heung-gu