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

[2] When a rejection of an application for a litigation aid filed during the period for correction of recognition becomes final and conclusive, or when a rejection order can be issued against a complaint on the grounds of non-compliance such as recognition

[1] 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 are special provisions in other Acts” under the main sentence of Article 1 of the Act on the Stamps Attached for Civil Litigation, Etc., and thus, in principle, the presiding judge may not dismiss a complaint, etc. on the ground that the occurrence of the duty to affix stamps is prevented until a decision of dismissal becomes final and conclusive, and the same is not attached to the complaint

[2] The fact that the performance of the duty to attach stamps is suspended or postponed until the judgment dismissing the application for the legal aid becomes final and conclusive, and there is no ground to deem that the previous order to attach stamps becomes void on the ground that there is an application for the legal aid. Therefore, the presiding judge need not issue an order to correct stamps again, but may issue an order to dismiss the complaint, etc. only when the entire period for correction in accordance with the previous order to correct stamps is resumed and the period for correction in accordance with the previous order to correct stamps has expired.

[1] Article 1 of the Act on the Stamps Attached to Civil Litigation, Etc., Article 8(2) of the Administrative Litigation Act, Articles 128 and 133 of the Civil Procedure Act / [2] Article 1 of the Act on the Stamps Attached to Civil Litigation, etc., Article 8(2) of the Administrative Litigation Act, Articles 128, 133 and 247(2) of the Civil Procedure Act

[1] Supreme Court Order 92Ma1134 dated January 25, 1993 (Gong1993Sang, 1055) Supreme Court Order 2002Ma3411 dated September 27, 2002 (Gong2002Ha, 2560) Supreme Court Order 2004Ma1134 dated July 15, 2005

Appellant 1 and 1 other

The Mayor of Incheon Metropolitan City

Seoul High Court Order 2006Nu2680, 2697 (Consolidated) dated April 2, 2007 to dismiss a petition for appeal

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

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 revenue stamps prescribed by the above Act shall be attached to a complaint, an application, or a protocol in which the purport of the application is stated in the civil procedure, an administrative litigation procedure, etc., except as otherwise provided in other Acts. Thus, since the litigation structure applicable 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 occurrence of the obligation to attach revenue stamps shall be avoided until the decision of dismissal thereof becomes final and conclusive. Thus, the presiding judge shall not dismiss a complaint, etc. on the ground that no revenue stamps are affixed to the complaint, etc. (see Supreme Court Order 92Ma134, Jan. 25, 1993; Supreme Court Order 2002Ma3411, Sep. 27, 2002; Supreme Court Order 2004Ma1134, Jul. 15, 2005, etc.).

On the other hand, it means that the performance of the duty to attach stamps is suspended or postponed until the judgment dismissing the application for the legal aid becomes final and conclusive, and there is no ground to deem that the previous application for the legal aid order has lost its validity. Thus, when a decision of dismissal becomes final and conclusive with respect to the application for the legal aid arising during the period for correction in accordance with the previous order to correct stamp, the presiding judge need not issue a new order to correct stamp, but it should be deemed that the order can be issued only when the entire period for correction in accordance with the previous order to correct stamp has expired (Article 247(2) of the Civil Procedure Act, etc. by analogy).

According to the records, the re-appellant (designated party, hereinafter "re-Appellant") was the plaintiffs in Seoul High Court case 2006Nu2680, 2697 (Joint) and did not affix stamps to the petition of appeal filed on February 5, 2007. The presiding judge of the court below ordered the Re-Appellant on February 6, 2007 that "the date of service of the order was corrected within 7 days," and the order was served on the Re-Appellant on February 9, 2007. The Re-Appellant filed an application for legal aid on February 16, 2007, but the decision to dismiss the application became final and conclusive as the filing period of appeal on March 27, 2007. However, the presiding judge of the court below rejected the petition of appeal of this case on the ground that the Re-Appellant did not confirm the period of appeal of this case as determined by the previous order of correction and its expiration on April 23, 2007.

In light of the aforementioned facts in light of the legal principles as seen earlier, the presiding judge of the lower court could issue an order of rejection to the petition of appeal only after seven days after the expiration of the period for correction of affiliation order, which was seven days before February 6, 2007, from the time when the dismissal ruling of the application for litigation aid became final and conclusive, as seen above, but the lower court rejected the petition of appeal of this case on April 2, 2007, where the period for correction of seven days has not yet lapsed from different opinions. In so doing, the lower court erred by misapprehending the legal principles as to the application for litigation aid and the validity of the order of correction of affiliation order

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 Ji-hyung (Presiding Justice)