Whether Article 399(2) or 402(2) of the Civil Procedure Act concerning an order to dismiss a petition of appeal filed by the presiding judge is applicable where the appellant refuses to comply with an order to correct the gist, etc. of appeal by the first instance court or the presiding judge of the appellate court, but it can be known that he/she seeks to change the judgment of the first instance in light of the overall purport

Articles 397(2), 399(2), and 402(2) of the Civil Procedure Act

Re-appellant

Other Party

Seoul Central District Court Order 201Na31880 dated November 29, 2011

We reverse the order of the court below.

The grounds of reappeal are examined.

Article 397(2) of the Civil Procedure Act provides that the purport of appeal against the judgment shall be stated in the petition of appeal by stating the parties, legal representatives, the indication of the judgment of the court of first instance, and the purport of appeal against the judgment. As such, the petition of appeal by an appellant seeking a change of the judgment of the court of first instance shall not be stated sufficiently if it appears to be the intention of the appellant seeking a change of the judgment of the court of first instance, nor shall it be stated in the scope or reason of appeal. Therefore, in a case where it is evident that the purport of appeal is to be modified in light of the whole purport of the petition of appeal, even though the appellate court issued an order of correction to clarify the purport of appeal or reason for appeal by the presiding judge, this does not constitute a ground to be applied under Article 3

According to the records, the Re-Appellant was the defendant in Seoul Central District Court case 201Kadan95456 building name and was sentenced to a judgment in whole by the above court on June 29, 201, and the Re-Appellant stated that he/she is dissatisfied with the above judgment in the petition of appeal submitted to the above court on June 30, 2011, but did not clearly state the scope of appeal or reason therefor. The presiding judge of the first instance ordered the Re-Appellant to revise the stamps of the petition of appeal on July 4, 201, and the presiding judge of the court ordered the Re-Appellant to correct the stamps of the petition of appeal on July 12, 201. After the record was sent to the appellate court, on October 18, 2011, the presiding judge of the court below ordered the order of correction on the ground that the order was served on October 27, 2011, the presiding judge did not inform the Re-Appellant of the above order of correction within the correction period.

In light of the above legal principles, although the above measures by the presiding judge of the court below do not constitute grounds under Article 402 (2) of the Civil Procedure Act, it is illegal as the order dismissed the petition of appeal of the re-appellant.

It is so decided as per Disposition by the assent of all participating Justices on the bench that the order of the court below is reversed.

Justices Ahn Dai-hee (Presiding Justice)