Measures to be taken by the presiding judge of the first instance court where there is no ground to dismiss the petition itself;

In a case where an appellant asserts the grounds for subsequent completion, the examination as to whether the grounds for subsequent completion exist is not included in the authority to examine the petition of appeal as prescribed by Article 399(2) of the Civil Procedure Act. Therefore, in a case where an appeal for subsequent completion has been filed, the appellate court shall conduct pleadings to examine whether the grounds for subsequent completion exist and whether the grounds for subsequent completion exist, and if the grounds for subsequent completion exist, the appellate court shall render a substantial judgment as to the propriety of the procedural act to be completed, i.e., whether the grounds for subsequent completion are justifiable. If the grounds for subsequent completion are groundless, the appellate court shall render a judgment of rejection, i.e., an illegal appeal after the peremptory period, and the presiding judge of the first instance court shall make a judgment of rejection, i.e., an illegal appeal after the peremptory period, if the appeal for subsequent completion violates the provisions of Article 397(2) of the Civil Procedure Act, or if the appellant fails to supplement the defects, and even if the appellate court issues an order for subsequent completion to the appellate court, such rejection can be dismissed by its own court.

Articles 397(2) and 399(2) of the Civil Procedure Act

Supreme Court Order 2006Ma354 Delivered on May 19, 2006

Appellant (Attorney Seo Young-am et al., Counsel for the appellant-appellant)

Other party (Law Firm Early Election and 1 other, Counsel for the plaintiff-appellant)

Gwangju District Court Order 2008Gahap2307 dated August 14, 2009

The first instance order shall be revoked.

According to the records, it is recognized that the appellant issued an order to dismiss the petition of this case pursuant to Article 399(2) of the Civil Procedure Act on the ground that the original copy of the judgment of the first instance was served by public notice on June 26, 2009, and did not file an appeal within the appeal period. Thus, the appellant filed an appeal on the ground that “if a party is unable to comply with the peremptory period due to any cause not attributable to him/her,” as provided by Article 173(1) of the Civil Procedure Act, and that the presiding judge of the first instance court has issued an order to dismiss the petition of this case on the ground that the submission of the petition of appeal with the lapse of the appeal period cannot be deemed due to any cause not attributable to the party, and it is evident that the appeal period was filed after the lapse of the appeal period,

Before the judgment on the grounds for appeal by the appellant is made, it is not included in the authority to examine the petition of appeal as prescribed by Article 399(2) of the Civil Procedure Act. Thus, in case where an appeal for subsequent completion is filed, the appellate court shall conduct arguments to examine whether the grounds for subsequent completion exist and whether the grounds for subsequent completion exist, and if the grounds for subsequent completion are well-grounded, the appellate court shall render a substantial judgment on the propriety of the procedural acts to be completed, i.e., whether the grounds for subsequent completion are reasonable. If the grounds for subsequent completion are groundless, the appellate court shall render a judgment of rejection by making it illegal after the peremptory period and the subsequent illegal appeal (see, e.g., Supreme Court Order 2006Ma354, May 19, 2006), and the presiding judge of the first instance court shall issue an order to dismiss the appeal for subsequent completion only if the grounds for subsequent completion violate the provisions of Article 397(2) of the Civil Procedure Act, or if the grounds for subsequent completion are not attached to the appellate court itself.

Therefore, since the order to dismiss the petition of appeal by the presiding judge of the first instance court is unlawful, it shall be revoked ex officio and decided as per Disposition.

Judge Choi Pung-ho (Presiding Judge)