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

Article 1 of the Act on the Stamps Attached to Civil Litigation, Etc.

Supreme Court Order 2002Ma3411 Decided September 27, 2002 (Gong2002Ha, 2560) Supreme Court Order 2007Ma77 dated June 2, 2008 (Gong2008Ha, 1454)

Re-appellant

Seoul High Court Order 2008Na22070 dated November 9, 2009

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 the stamps prescribed by the above Act shall be attached to a protocol stating the purport of a complaint, application or application in the civil procedure, etc., except as otherwise provided for in other Acts. Thus, since the litigation structure under the Civil Procedure Act falls under “cases where there are special provisions in other Acts,” in principle, the occurrence of the obligation to affix stamps shall be prevented until the decision of dismissal becomes final and conclusive. Thus, the presiding judge shall not dismiss a complaint, etc. on the ground that the written complaint, etc. is not stamped (see Supreme Court Order 2002Ma3411, Sept. 27, 2002; Supreme Court Order 2007Ma77, Jun. 2, 2008, etc.).

According to the records, the Re-Appellant did not affix stamps to the petition of appeal filed on August 17, 2009, as the plaintiff in Seoul High Court 2008Na22070, and the presiding judge of the court below ordered the Re-Appellant to recognize or correct "within seven days from the date of service of the order" August 24, 2009. The order was served on the Re-Appellant on September 3, 2009. The Re-Appellant filed an application for legal aid concerning the duty to attach stamps on September 11, 2009, but the decision to dismiss the application was made on September 23, 2009. The above dismissal ruling became final and conclusive on November 11, 2009 with the appeal period, but the presiding judge of the court below rejected the petition of appeal on the ground that the re-appellant did not confirm the period of appeal prior to the dismissal of the above petition of appeal.

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 Ahn Dai-hee (Presiding Justice)