[1] Whether a complaint, etc. may be dismissed on the ground that no stamp is affixed to the complaint, etc. before a ruling of dismissal on the application for a lawsuit becomes final and conclusive (negative in principle)

[2] Whether the delivery of documents to clerical staff, etc. at a place other than the place of delivery under Article 183(1) of the Civil Procedure Act is legitimate by means of supplementary service (negative)

[1] The main text of Article 1 of the Act on the Stamps Attached for Civil Litigation, Etc. provides that revenue stamps prescribed by the above Act shall be attached to a protocol stating the purport of a complaint, application or application in the civil procedure, administrative litigation procedure, etc., except as otherwise provided in other Acts. Thus, since a litigation structure under the Civil Procedure Act, which is applied mutatis mutandis under Article 8(2) of the Administrative Litigation Act, falls under “where there is a special provision in other Acts,” in principle, the presiding judge shall not dismiss a complaint, etc. on the ground that the occurrence of the duty to attach revenue stamps is suspended until the decision to dismiss the application becomes final and conclusive, and the performance of the duty to attach revenue stamps shall not be suspended or postponed until the judgment dismissing the application to attach revenue stamps becomes final and conclusive, and thus, the validity of the previous order to attach revenue stamps shall not be lost since the application to submit a lawsuit during the period for correction pursuant to the previous order to supplement revenue stamps is final and conclusive, but it is not necessary to issue a new order to supplement revenue stamps, but may be dismissed only after the entire period for correction order expires.

[2] In principle, service shall be made at the “place of service” such as the domicile, temporary domicile, place of business or office of a person to receive the service under Article 183(1) of the Civil Procedure Act. If a person to receive the service is not present at the place of service, service may be made by means of a supplementary service to deliver the documents to his office staff, employee, or a person living together with the mental capacity to make reasonable judgment. However, such supplementary service may be made only when it is made at the “place of service” as stipulated under the above provision of the Civil Procedure Act, and it is unlawful by means of a supplementary service, even if the office staff, employee, or a person living together refuses to receive the service, etc., even if the office staff, employee, or a person living together, etc.

[1] Article 1 of the Act on the Stamps Attached to Civil Litigation, Etc., Article 8(2) of the Administrative Litigation Act, Article 128 of the Civil Procedure Act / [2] Article 8(2) of the Administrative Litigation Act, Articles 183(1) and 186 of the Civil Procedure Act

[1] Supreme Court Order 2007Ma77 dated June 2, 2008 (Gong2008Ha, 1454) / [2] Supreme Court Order 2001Ma3790 dated August 31, 2001 (Gong2001Ha, 2516)

Re-appellant

Seoul High Court Order 2017Ra1468 dated December 21, 2017

The order of the court below is reversed, and the case is remanded to Seoul High Court.

The grounds of reappeal are examined.

1. The main text of Article 1 of the Act on the Stamps Attached for Civil Litigation, Etc. provides that revenue stamps prescribed by the above Act shall be attached to a protocol stating the purport of a complaint, application or application in the civil procedure, administrative litigation procedure, etc. Except as otherwise provided for in other Acts. Thus, since a litigation structure under the Civil Procedure Act applied mutatis mutandis pursuant to Article 8(2) of the Administrative Litigation Act falls under “where there is a special provision in other Acts,” in principle, the occurrence of the duty to attach revenue stamps shall be avoided until the decision of dismissal becomes final and conclusive. Thus, the presiding judge may not dismiss a complaint, etc. on the ground that no revenue stamps are affixed in the complaint, etc. (see Supreme Court Order 2007No77, Jun. 2, 2008). The imposition of the duty to attach revenue stamps means that the performance of the duty to attach revenue stamps is suspended or postponed until the judgment dismissing the application for a lawsuit becomes final and conclusive, it does not mean that the previous order has become void, and it is necessary to re-examine the correction order within 207 months after the previous order of correction order.

Meanwhile, as a matter of principle, a service ought to be made at the “place of service” such as the domicile, temporary domicile, place of business, office, etc. of a person to receive the service under Article 183(1) of the Civil Procedure Act. If a person to receive the service is not present at the place of service, the service may be made by means of a supplementary service, which may be made by delivering the documents to his office worker, employee, or a person living together with the mental capacity to change the interest. However, such supplementary service may be made only when it is made at the “place of service” as stipulated in the above provision, and even if the office worker, employee, or a person living together is present at a place other than the place of service, the delivery of the documents to his office worker, etc. is unlawful by means of supplementary service (see Supreme Court Order 2001Ma3790, Aug. 31, 201).

2. The record reveals the following facts.

A. The Re-Appellant filed the instant appeal as of October 16, 2017, and did not attach stamps to the petition of appeal, and the presiding judge of the first instance court issued a correction order stating that “The Re-Appellant corrected stamps and service fees within five days from the date when the order was served” was “the date when the order was served.”

B. On October 23, 2017, the re-appellant filed an application for a legal aid with respect to a stamp, etc. The re-appellant submitted a written application for legal aid to change his/her address and service address from "Seoul Yangcheon-gu ( Address 1 omitted) to "Seoul Yongsan-gu ( Address 2 omitted)."

C. On November 3, 2017, an application for litigation aid was dismissed. The certified copy of the decision of dismissal was served as the Seoul Yangcheon-gu Seoul ( Address 1 omitted), the former address, and on November 6, 2017, the “workplace Nonparty” received a certified copy of the said decision.

D. On November 17, 2017, the presiding judge dismissed the petition of appeal of this case on the ground that the re-appellant did not correct the stamps within the period specified in the order of correction.

3. Examining these facts in light of the legal principles as seen earlier, it is difficult for the re-appellant to recognize that the receipt of the certified copy of the decision to dismiss the application for lawsuit filed by the workplace partner in the previous service address after applying for change of address and service place was effective as a lawful supplementary service against the re-appellant. As such, the presiding judge of the first instance court dismissed the petition of appeal of this case on the ground of nonperformance of recognition and correction in a situation where it cannot be deemed that the decision became final and conclusive because the decision to dismiss the application for lawsuit was not lawfully notified to

In addition, even if the decision to dismiss an application for litigation was served as of November 6, 2017 and became final and conclusive as the one week immediate appeal period, the presiding judge of the first instance court dismissed the petition of appeal in this case on the ground of failure to comply with the correction of November 17, 2017, for which five days correction period specified in the order of correction was not yet expired from the date such decision became final and conclusive, even though the decision was served as of November 6, 2017. The order to dismiss the petition of appeal in this case is deemed to be unlawful.

Nevertheless, the lower court’s order that maintained the first instance order, which rejected the petition of appeal of this case, erred by misapprehending the legal doctrine on the application for litigation aid, the validity of the order to correct recognition, and the legality of the supplementary service, thereby adversely affecting the conclusion

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.

Justices Kim So-young (Presiding Justice)