Whether an order for recognition correction or rejection of a complaint may be issued on the ground that the application for a litigation aid has not been affixed to the complaint, etc. before a decision on dismissal thereof becomes final and conclusive (negative)

Article 1 of the Act on the Stamps Attached to Civil Litigation, Etc., Articles 128 and 254 of the Civil Procedure Act

Supreme Court Order 2002Ma3411 Decided September 27, 2002 (Gong2002Ha, 2560) Supreme Court Order 2004Ma1134 Decided July 15, 2005, Supreme Court Order 2007Ma77 Decided June 2, 2008

Re-appellant

Korea

Gwangju High Court Order 2007Jinna12 dated August 20, 2007

The order of the court below is reversed, and the case is remanded to the Gwangju 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 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. The litigation structure under the Civil Procedure Act falls under “cases where special provisions exist in other Acts.” Thus, where an application for legal aid has been filed, the occurrence of the duty to attach stamps is prevented and the performance of the duty to attach stamps is suspended or postponed until the decision on dismissal thereof becomes final and conclusive. Thus, the presiding judge shall not issue an order to correct stamps or dismiss a complaint, etc. for the same reason that no stamp is affixed to the complaint, etc. (see Supreme Court Order 2002Ma3411, Sep. 27, 2002; Supreme Court Order 2004Ma1134, Jul. 15, 2005; Supreme Court Order 2007Hu77, Jun. 2, 2008).

According to the records, the re-appellant filed a lawsuit for retrial of this case as of March 21, 2007 and filed an application for legal aid on the same day, but the presiding judge of the court below dismissed the application for legal aid of this case on March 28, 2007. On the same day, the presiding judge of the court below ordered the re-appellant to correct the above stamps within seven days from the service date due to lack of 1,882,50 won. On the same day, the above order was served on the Re-Appellant on April 4 of the same year. The re-appellant's ruling of dismissal of the above application for legal aid of this case was dismissed by the Supreme Court on July 27 of the same year and served on the re-appellant on August 3 of the same year, 200, the presiding judge of the court below dismissed the application for retrial of this case on the ground that the re-appellant did not correct the period set forth in the above order for recognition correction of August 20 of the same year.

Therefore, in light of the legal principles as seen earlier, the order of this case, which dismissed the petition of this case on the ground of failure to comply with the order of recognition correction or stamp correction issued by the presiding judge of the court below before the decision of dismissal on the petition of this case becomes final and conclusive, shall be deemed unlawful. Thus, the order of the court below is erroneous in the misapprehension of legal principles as to the application of litigation aid and the occurrence of stamp duty

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 Cha Han-sung (Presiding Justice)