1. Whether the order to dismiss the petition of appeal can be automatically null and void only on the ground that there was no lawful service of such order of rejection of the petition of appeal;

2. Where the original is not dismissed in the petition of appeal;

1. In serving an order to dismiss a petition of appeal on the sole ground that the order to dismiss the petition of appeal is an invalid judgment, even if it was not a lawful service of the order by submitting the service report to the court by without serving it to the defendant, affixing his unmanned on the receipt column of the service report to the defendant as the defendant’s unmanned seal, and submitting the service report to the court.

2. No judgment shall be deemed null and void on the ground that he/she did not dismiss the original petition of appeal, and only issued an order to dismiss the petition of appeal;

Articles 383 and 231 of the Civil Procedure Act

Supreme Court Decision 68Ma756 Decided July 30, 1968 (Kakadd 7727, Supreme Court Decision 16Du2327 Decided September 23, 1975 (Supreme Court Decision 75Da1109 Decided September 23, 1975 (Kad 11041, Supreme Court Decision 233No. 933, Court Gazette 524No8685 Decided September 5, 197)

Plaintiff

Defendant

Daegu District Court (73 Gohap525) in the first instance

On January 24, 1974, this case terminated by the order to dismiss the petition of appeal.

Costs of litigation after an application for designation of the date for pleading shall be borne by the defendant.

The defendant's attorney is entitled to designate the date for pleading of this case.

According to the records of this case, the defendant filed an appeal against the judgment on December 31, 1973 between the plaintiff and the Daegu District Court 73 Gohap 525 Gohap, and since the amount of revenue stamps added to the petition of appeal falls short of 7,540 won, the presiding judge ordered the defendant, the appellant on January 14, 1974, to make an order of correction as to the addition of the shortage of revenue stamps, but there was no correction of revenue stamps during the period of correction. Therefore, it is clear that the petition of appeal of this case was dismissed on the ground of this, on January 24, 1974.

However, the defendant's attorney at the time of filing an application for designation of the date of pleading on the case as of January 31, 1974 and asserts the following.

First, according to Articles 371 and 231 of the Civil Procedure Act, in a case where there is no recognition of the fixed amount of the appeal, the court shall order the addition of the fixed amount of the appeal within a reasonable period, and only if the correction is not made within such period, the court may dismiss the appeal as an order by the presiding judge. In this case, the defendant does not have received an order from the court to make correction concerning the shortage of the fixed amount of the appeal. Thus, the above order to dismiss the appeal is asserted to be null and void as a judgment without the order to make correction. Thus, according to the testimony of the non-party to the witness at the trial, the non-party to the Yeongdeungpo-cheon Post Office clerk at the time of delivering the original appeal to the defendant as of January 14, 1974, the court shall dismiss the original appeal without delivering it to the defendant, and it cannot be viewed that the above order has been dismissed as a lawful delivery of the appeal within the correction period, and it cannot be said that the original order has been rejected as a legitimate reason for rejection of the appeal.

Third, the defendant's failure to correct the stamps within the period of correction as determined by the court is due to reasons for not being responsible for the defendant, and the defendant's allegation that the defendant's attorney's failure to correct the stamps by adding them to the above order of correction on January 26, 1974, which is not later than 2 weeks from the date of receipt of the order of rejection of the appeal petition, should be revoked since the defendant's failure to correct the stamps is completed by adding them to the above order of correction on January 30, 1974, which is not more than 2 weeks from the date of receipt of the above order of rejection of the appeal petition.

In other words, if the defendant's attorney does not have all arguments, the application for designating the date for pleading of this case shall be deemed to have been filed an immediate appeal against the order to dismiss the above petition of appeal. Thus, if the defendant withdraws the appeal on January 28, 1974 and applies for the designation of the date for pleading of this case on January 31, 1974, it is evident in the record that the defendant applied for the designation of the date for pleading of this case. Thus, the above assertion cannot be seen as having been accepted.

Therefore, since there is no reason to apply for designation of the date for pleading on the merits of the defendant, the party member is a final and conclusive judgment and declared that the lawsuit has been terminated by an order to dismiss the above petition of appeal, and it is so decided as per Disposition by applying Articles 95 and 89 of the Civil Procedure Act to the burden of litigation costs after designation

Judge Lee Jong-dae (Presiding Judge)