In a case where the first instance court rendered a judgment without pleading pursuant to Article 257(1) of the Civil Procedure Act with excessive submission of the defendant's written reply, whether the appellate court shall revoke the first instance judgment (affirmative), and whether the appellate court may render a judgment again without returning the case (affirmative)

When the first instance court served a duplicate of a complaint on the defendant, where the defendant contests the plaintiff's claim, it shall submit a written answer within 30 days from the date of receipt of the duplicate of the complaint (Article 256 (1) of the Civil Procedure Act). When the defendant fails to submit a written answer, the court may render a judgment without holding any pleadings by deeming that the facts constituting the cause of the claim have been led to confession (hereinafter "non-drawing judgment"), but where the defendant submits a written answer to the purport that the plaintiff contests the plaintiff's claim until the judgment is pronounced, it shall not render a judgment without holding

Therefore, in a case where the first instance court rendered a judgment without pleading pursuant to Article 257(1) of the Civil Procedure Act with the submission of a written answer by the defendant, the procedure of the first instance court constitutes a case in violation of the law.

The court of appeals shall revoke the judgment of the first instance when the procedure of the judgment of the first instance is in violation of Acts (Article 417 of the same Act). Accordingly, in case where the first instance court rendered a judgment without holding any pleadings pursuant to Article 257(1) of the Civil Procedure Act, and the procedure of the first instance court is in violation of Acts, the court of appeals shall revoke the judgment of the first instance pursuant to Article 417 of the Civil Procedure Act: Provided, That in a case where the appellate court revokes the judgment of the first instance, it does not necessarily have to remand the case to the first instance court, and thus, it may render a new judgment without returning the case directly

Articles 256(1), 257(1), 416, 417, and 418 of the Civil Procedure Act

Supreme Court Decision 2002Da72514 Decided April 25, 2003 (Gong2003Sang, 1265), Supreme Court Decision 2013Da28971 Decided August 23, 2013 (Gong2013Ha, 1727)

Plaintiff (Law Firm Hyd Co., Ltd., Attorneys Lee Chang-seop et al.)

Defendant (Attorney Yoon-hoon et al., Counsel for defendant-appellant)

Seoul Western District Court Decision 2019Na36084 decided July 17, 2020

The judgment below is reversed, and the case is remanded to the Seoul Western District Court.

The grounds of appeal are examined.

1. Measures of an appellate court against a judgment rendered without holding any unlawful pleading by the first instance court;

A. When the court of the first instance served a duplicate of a complaint on the defendant, where the defendant contests the plaintiff's claim, it shall submit a written answer within 30 days from the date of receiving the duplicate of the complaint (Article 256 (1) of the Civil Procedure Act). When the defendant fails to submit a written answer, the court may render a judgment without pleading by deeming the fact constituting the cause of claim to have been led to the confession (hereinafter "a judgment without pleading"). However, where the defendant submits a written answer to the purport that he contests the plaintiff's claim until the judgment is pronounced, it shall not render a judgment without pleading (Article 257

Therefore, in a case where the first instance court rendered a judgment without pleading pursuant to Article 257(1) of the Civil Procedure Act with the submission of a written answer by the defendant, the procedure of the first instance court constitutes a case in violation of the law.

B. The court of appeals shall revoke the judgment of the first instance when the procedure of the judgment of the first instance is in violation of the Act (Article 417 of the same Act). Accordingly, where the first instance court rendered a judgment without pleading pursuant to Article 257(1) of the Civil Procedure Act, with the submission of a written answer by the defendant, and the procedure of the first instance court is in violation of the law, the court of appeals shall revoke the judgment of the first instance pursuant to Article 417 of the Civil Procedure Act (see, e.g., Supreme Court Decision 2002Da72514, Apr. 25, 2003): Provided, That where the appellate court revokes the judgment of the first instance, it does not necessarily have to remand the case to the first instance court (see, e.g., Supreme Court Decision 2013Da28971, Aug. 23, 2013).

2. Progress of the instant lawsuit

A. A. Around March 2019, the first instance court served a duplicate of the instant complaint on the Defendant. Around 30 days, the Defendant failed to submit a written answer and notified the date for a judgment without pleading. On May 14, 2019, the Defendant dismissed the Plaintiff’s claim and submitted a written answer to the effect that it would be changed. On May 16, 2019, the first instance court rendered a judgment without pleading.

B. While filing an appeal, the Defendant asserted that there was an error in the first instance judgment procedure, and the lower court dismissed the Defendant’s appeal, and rendered a judgment that changes the text of the first instance judgment according to the reduction of the claim made by the lower court while dismissing the Defendant’s appeal.

C. Examining in light of the aforementioned legal principles, the lower court, as an appellate court, should have revoked the first instance judgment which rendered a judgment without holding a pleadings pursuant to Article 257(1) of the Civil Procedure Act, with excessive response to the fact that the Defendant submitted a written reply (it may be determined either by returning or directly taking into account the interests of the next instance). Nevertheless, the lower court did not take such measures and dismissed the Defendant’s appeal. In so doing, it erred by misapprehending the legal doctrine on the requirements to render a judgment without holding a pleadings, Article 417 of the Civil Procedure Act, which affected the conclusion of

3. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal, the judgment 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

Justices Noh Tae-tae (Presiding Justice)