[1] The case holding that the order to dismiss a petition of appeal under Articles 443(1) and 399 of the Civil Procedure Act may be issued only when the petition of appeal is in violation of the provisions of Article 397(2) of the same Act, where the stamp is not attached, and where it is obvious that the period of appeal has elapsed, and where it is obvious that the order to dismiss the petition of appeal is not subject to appeal under Articles 439 and 440 of the Civil Procedure Act

[2] Whether an appeal against a decision of the full bench to resume pleadings or an order to designate a date by the presiding judge is legitimate (=unapplicable law)

[1] Articles 399, 439, 440, and 443(1) of the Civil Procedure Act / [2] Articles 142, 165, 439, 442, and 449 of the Civil Procedure Act

[2] Supreme Court Order 94Da39086, 39093 dated June 30, 1995 (Gong1995Ha, 2548) Supreme Court Order 2007Da47 dated June 8, 2007

Re-appellant

Chuncheon District Court Order 2007Na2029 dated January 31, 2008

The order to dismiss the petition of appeal by the court below shall be reversed. The appeal against the decision to resume the pleadings by the court below and the order to designate the date shall be dismissed.

According to the records, it is clear that the appellate court, at the same time, made a decision to resume pleadings on the merits of the case, and the presiding judge issued an order to designate a date in which the next date is estimated, the plaintiff's appeal (hereinafter referred to as "appeal of this case"), and the presiding judge of the court below issued an order to dismiss the petition of this case pursuant to Articles 443 (1) and 399 of the Civil Procedure Act, on the grounds that the grounds that the grounds alleged by the appellant cannot be deemed as an object of appeal under Articles 439 and 440 of the same Act.

However, the order to dismiss a petition of appeal under Articles 443(1) and 399 of the Civil Procedure Act is a mistake for the court below to issue the order to dismiss the petition of appeal of this case for the above reasons, since it is clear in the text of law that the order may be issued only when the petition of appeal violates the provisions of Article 397(2) of the same Act, where the stamp is not attached, or where it is obvious that the period of appeal has elapsed.

Therefore, the order of rejection of the petition of appeal by the court below shall be reversed, and since the appeal of this case is an objection to the decision and order by the appellate court, it is obvious that it falls under the reappeal of Article 442 of the Civil Procedure Act or the special appeal of Article 449 of the same Act, the judgment authority shall be imposed on the party member. However, since the court below already sent all the records of the appeal to the party member, it shall be decided immediately as to the above appeal.

The order of the full bench to resume pleadings or to designate a date of trial by the presiding judge is generally subject to appeal under Article 439 of the Civil Procedure Act, which does not fall under the “order or order dismissing an application for the procedure of lawsuit” and does not have any special provision that is entitled to appeal (see Supreme Court Order 94Da39086, 39093, Jun. 30, 1995). In addition, in a case where an appeal is filed, it has the nature of an intermediate trial subject to an appeal along with the final judgment, and it does not constitute an order or order that is not subject to an appeal (see Supreme Court Order 2007Da47, Jun. 8, 2007). Ultimately, the appeal against it is unlawful.

Therefore, the order to dismiss the appeal of this case is reversed, and it is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Ill-sook (Presiding Justice)