Whether the petition of appeal may be dismissed on the ground that, other than the address of the appellee stated in the petition of appeal or the written judgment, the service of the document was not made to the address indicated in the petition of appeal but to the address indicated in the petition of appeal, without attempting to serve it to any other address despite the existence of the record of trial (negative)

Article 402(1) of the Civil Procedure Act provides that where it is impossible to serve a duplicate of the petition of appeal, the presiding judge of the appellate court shall order the appellant to correct the defects within a reasonable period fixed by him/her, and Article 402(2) of the same Act provides that the appeal shall be dismissed by an order in cases where the appellant does not correct the defects within the prescribed period. In addition to the address of the appellee stated in the petition of appeal or the judgment, etc., in cases where other addresses than the address of the appellee are entered in the records of litigation, if the appellant has attempted to serve the document at such other address, he/she shall order the appellant to correct his/her address, and without taking such measures, only if the document has not been served at the address stated in the petition of appeal, the appellate court shall order the

Article 402(1) and (2) of the Civil Procedure Act

Plaintiff

Defendant

Seoul High Court Order 2013Na2023400 dated January 7, 2014

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

The grounds of reappeal are examined.

1. Article 402(1) of the Civil Procedure Act provides that in a case where it is impossible to serve a duplicate of the petition of appeal, the presiding judge of the appellate court shall order the appellant to correct the defects within the prescribed period, and Article 402(2) of the same Act provides that in a case where the appellant does not correct the defects within the prescribed period, the appellate court shall dismiss the petition of appeal by order. In a case where other addresses than the address of the appellee stated in the petition of appeal or the judgment, etc. are in the records of litigation, if the appellant has attempted to serve the petition of appeal to such other address, and is not served any other address, the appellate court shall order the appellant to correct his address; without taking such measures, the appellate court shall order the appellant to correct his address; on the sole basis of the fact that the service

2. The record reveals the following facts: ① The complaint of this case or the written judgment of the court of first instance entered the address of the defendant (Appellant 1 omitted; hereinafter “Appellant”) as “Yandong-si,” and the appeal of this case submitted by the Re-Appellant (Appellant 1 omitted; hereinafter “Re-Appellant”) also entered the address of the appellee as above address; ② the court below served a duplicate of the petition of appeal to the appellee, but it was impossible to serve the appellant as “the director’s unknown”; and the presiding judge of the court below served the Re-Appellant with an order to submit the statement of reasons for appeal on two occasions on November 13 and October 10, 2013 and to revise the address of the appellee. The presiding judge of the court below rejected the appeal of this case on January 7, 2014 on the ground that the Re-Appellant submitted the statement of reasons for appeal, but did not amend the address; and ③ the presiding judge of the court below rejected the appeal of this case on the ground that he did not correct the address.

However, according to the records, in the first instance court, the respondent submitted the document and evidence to the court on June 25, 2013 and August 25, 2013, the mail envelope was written in which the respondent's address was stated as "Yandong City ( Address 2 omitted)." The first instance court, after the judgment was rendered, served the respondent with "Sandong City ( Address 1 omitted)" in the first instance court, but it was impossible to serve the respondent as "director's unknown" in the first instance court, and served the respondent on October 14, 2013. Thus, the court below should have tried to serve a duplicate of the petition of appeal to "Yandong City ( Address 2 omitted)" as "Yandong-si ( Address 2 omitted)," which is the domicile where the notice of the first instance court was served on the appellee on June 25, 2013.

Nevertheless, it was erroneous for the court below to dismiss the petition of appeal of this case on the ground that the court below ordered the re-appellant to correct the address and did not correct the address.

3. 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 Park Poe-young (Presiding Justice)