Whether the rejection order may be revoked in cases where an appeal was filed by amending the defects in the order of rejection of a petition for appeal by the presiding judge of the court below pursuant to Articles 368-2 and 395 of the Civil Procedure Act (negative)

Where the presiding judge issued an order of correction on the ground that there was a shortage in the stamps to be attached to the petition of appeal, but the appellant revised only a part of the appeal within the period of correction and issued an order of rejection of the petition of appeal pursuant to Articles 368-2 and 395 of the Civil Procedure Act, even after the above order of rejection of the petition of appeal was issued, the order of rejection cannot be cancelled even if the appellant applied for correction of the shortage

Articles 368-2 and 395 of the Civil Procedure Act

Supreme Court Order 68Na49 Dated July 29, 1968 (No. 16BB civils 317) 69Ma684 Dated September 30, 1969 (No. 173 civils 167) 71Ma410 Dated June 23, 1971

Han-Ankin

Seoul High Court Order 89Na527 dated October 8, 1990

The reappeal is dismissed.

The grounds of reappeal are examined.

1. Upon examining the record, the Re-Appellant filed an appeal against Seoul High Court Decision 89Na527 delivered on August 28, 1990, and the appeal court posted 70,000 won as revenue stamp. The court below ordered the Re-Appellant to correct 157,320 won as revenue stamp amounting to 15,091,120 won after calculating the value of the subject matter of the lawsuit against the Re-Appellant's objection amounting to 15,091,120 won, and 157,320 won as revenue stamp amounting to 227,320 won. Accordingly, the court below ordered the Re-Appellant to correct only 75,860 won within the period for correction. The court below ordered the dismissal of the above appeal pursuant to Articles 368-2 and 395 of the Civil Procedure Act on October 8, 190, and it cannot be said that the order violated the right to review the appeal based on the above law.

2. On October 16, 1990, after the order of the court below was issued, the re-appellant posted the remainder of 81,460 won and filed a reappeal, but after the order of dismissal of the appeal was issued, the order of dismissal cannot be cancelled even if the re-Appellant filed an application for correction of the shortage and objection (see, e.g., Supreme Court Order 71Ma49, Jul. 29, 1968; Order 71Ma410, Jun. 23, 1971).

3. The subject matter of the lawsuit in this case is real estate listed in the [Attachment 1,2, and 3 of the above 89 Jinna 527 judgment, and the court below calculated the value of the subject matter of the lawsuit as 15,091,120 won in total, and calculated as 227,320 won in a petition of appeal in accordance with Articles 2, 5, and 9 of the Act on the Stamps Attached to Civil Litigation, which was enforced at the time, and calculated as 227,320 won in a petition of appeal. The Re-appellant did not attach only the amount of stamp to be affixed to the petition of the court of first instance on the ground that the Re-Appellant filed a retrial against the judgment of the appellate court, and the Re-Appellant did not request a retrial against the subject matter of the lawsuit in this part of the claim of cancellation registration, and it does not change

Article 9 of the Act on the Stamps Attached to Civil Litigation provides that revenue stamps in accordance with the provisions of Articles 2, 3, and 5 shall be affixed according to the instance of the court in the lawsuit for retrial, and it does not require the re-appeal to attach revenue stamps in accordance with the provisions of Article 4 of the same Act.

4. In addition, the above new judgment court cannot be said to have attached only 1.5 times to the petition of appeal on the ground that it rendered a judgment with a seal of 75,865,000 won attached to the petition of new trial, and the petition of appeal against the judgment must attach a reasonable stamp of the statutory amount as prescribed by the Act on the Stamps of Civil Litigation.

5. Therefore, the arguments are without merit, and therefore, the reappeal of this case is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Ansan-man (Presiding Justice)