Whether a complaint, etc. may be dismissed on the ground that the stamp was not posted to the complaint, etc. before a decision of dismissal on the application for a lawsuit becomes final and conclusive (negative)

Article 1 of the Act on the Stamps Attached to Civil Litigation, Etc.

Supreme Court Order 2007No77 dated June 2, 2008 (Gong2008Ha, 1454)

Plaintiff

Defendant (Law Firm Jeong, Attorney Lee Ho-ho, Counsel for defendant-appellant)

Incheon District Court Order 2010Na17888 dated May 25, 2011

The order of the court below is reversed, and the case is remanded to the Incheon District Court Panel Division.

The grounds of reappeal are examined.

The main text of Article 1 of the "Act on the Stamps Attached for Civil Litigation, Etc." provides that a complaint, application, etc. in a civil procedure shall be affixed with stamps prescribed by the above Act, and the structure of the lawsuit under the Civil Procedure Act constitutes "cases where there are special provisions in other Acts" under the above provision. Therefore, in principle, the occurrence of the duty to attach stamps shall be avoided until the decision on dismissal thereof becomes final and conclusive. Thus, the presiding judge cannot dismiss the complaint, etc. on the ground that no stamp is affixed to the complaint, etc. (see, e.g., Supreme Court Order 2007No77, Jun. 2, 2008).

According to the records, the Re-Appellant did not attach stamps to the petition of appeal filed on May 2, 201, as the Plaintiff in Incheon District Court 2010Na17888, and the presiding judge of the court below issued an order for acknowledgement and correction on May 3, 2011, that "within seven days from the date of service of the order" was served on the Re-Appellant on May 4, 201, and the order was served on the Re-Appellant. On May 11, 2011, the Re-Appellant filed an application for legal aid with the Incheon District Court 2011Kao-gu76, the period for correction, the presiding judge of the court below rejected the petition of appeal of this case on May 25, 201, on the ground that the Re-Appellant did not correct the period set forth in the above order for correction, while the above application for legal aid was dismissed on May 20, 2011, and the re-appeal was dismissed on May 19, 2011.

In light of the above legal principles, the order of this case, which the presiding judge dismissed the petition of this case on the ground of failure to pay stamps before the dismissal of the petition for lawsuit filed by the re-appellant becomes final and conclusive, shall be deemed unlawful.

Therefore, the order of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Sang-hoon (Presiding Justice)