When determining whether the period of appeal is observed;

According to the provisions of Article 367 of the Civil Procedure Act, an appeal shall be submitted to the first instance court, so the determination as to whether the period of filing an appeal is observed in the appeal shall be made based on the time when the petition of appeal is received by the first instance court.

Article 367 of the Civil Procedure Act

Supreme Court Order 81Nu230 Decided October 13, 1981 84Ma251 Decided April 28, 1984

Re-appellant

Seoul Central District Court Order 87Ra632 dated September 2, 1987

The reappeal is dismissed.

According to the provisions of Article 367 of the Civil Procedure Act, since the appeal provides that a petition of appeal shall be submitted to the first instance court, it shall be determined on the basis of the time when the petition of appeal is received by the first instance court (see, e.g., Supreme Court Decision 81Nu230, Oct. 13, 1981; 84Ma251, Apr. 28, 1984).

According to the records, the re-appellant was served with the original copy of the judgment of the court of first instance on July 13, 1987, and submitted by mail a petition of appeal inserted in the envelope with the civil affairs and valuables of the Seoul District Court North Korea District Court, and received it to the North Korea District Prosecutors' Office of Seoul District Prosecutors' Office as of July 25 of the same year. The same branch office shall send it to the court of first instance on July 28 of the same year, and it is evident that it was received by the above court on that date, and eventually, the petition of appeal of this case was received to the court of first instance after the expiration of the period of appeal, and thus the appeal

The issue is that the mail containing the above mentioned petition of appeal was received without confirming it by the party on duty at the above North Korean Site Office, and immediately confirm its content and sent it to the first instance court, which was 40,000 won, notwithstanding the fact that it was received by the first instance court. This constitutes a case where it is impossible to observe the period of appeal due to a cause not attributable to the appellant, who is the re-appellant, and thus, the appeal of this case is lawful, or the above ground is not only a new argument that was not asserted by the time of the original judgment, but also a new ground under Articles 13 and 11 of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings. Thus, it is not a legitimate ground for reappeal.

Therefore, the reappeal is dismissed. It is so decided as per Disposition by the assent of all participating judges.

Justices Lee Lee-hee (Presiding Justice)