Where a withdrawal of an appeal is made after the lapse of the period for filing an appeal, the time the first instance judgment becomes final and conclusive (=at the expiration of the period for filing an appeal)

If an appeal is withdrawn, the lawsuit shall be deemed not to have been pending in the appellate court (Articles 393(2) and 267(1) of the Civil Procedure Act), but the final judgment of the first instance exists, unlike the withdrawal of the lawsuit taking an appeal or the waiver of the right to appeal, as well as the withdrawal of the lawsuit taking an appeal, so the final judgment of the first instance exists, if the appeal is withdrawn after the expiration of the period for filing an appeal, the judgment of the first instance becomes final and conclusive retroactively to the expiration of the period for filing an appeal, but if the appeal is withdrawn before the expiration of the period for filing

Articles 267(1) and 393(2) of the Civil Procedure Act

Plaintiff

Defendant

Seoul Family Court Decision 2015Reu466 decided August 28, 2015

The judgment below is reversed, and the case is remanded to the Seoul Family Court Panel Division.

The grounds of appeal are examined ex officio prior to judgment.

1. Where an appeal is withdrawn, the lawsuit shall be deemed not to have been pending at the appellate court from the beginning (Articles 393(2) and 267(1) of the Civil Procedure Act), but the final judgment of the first instance exists, unlike the withdrawal of the lawsuit to file an appeal or the waiver of the right to file an appeal. As such, where an appeal is withdrawn after the expiration of the period for filing an appeal, the judgment of the first instance becomes final and conclusive retroactively to the expiration of the period for filing an appeal, but where the appeal is withdrawn before the expiration of the period for filing an appeal, the appellant may again file an appeal if the judgment is not final

2. The record reveals the following facts.

A. In the instant lawsuit filed by the Plaintiff against the Defendant, the first instance court rendered a judgment in favor of the Plaintiff on February 13, 2015.

B. On February 16, 2015 and March 2, 2015, the first instance court attempted to serve the original copy of the judgment of the first instance on the Defendant’s domicile respectively, but all of the documents were impossible to be served due to the absence of a closed door.

C. However, on March 6, 2015, the Defendant submitted a petition of appeal (hereinafter “the first petition of appeal”) to the first instance court on March 6, 2015 when the authentic copy of the judgment of the first instance was not duly served, but submitted a written withdrawal of appeal to the first instance court on March 11, 2015.

D. On March 13, 2015, the Defendant submitted a petition of appeal (hereinafter “the second petition of appeal”) to the first instance court on the same day after being duly served with the authentic copy of the judgment of the first instance.

E. On August 28, 2015, the lower court declared that the instant lawsuit was terminated due to the withdrawal of appeal on March 11, 2015, without further proceeding to decide on the merits of the case.

3. Examining the foregoing facts in light of the legal principles as seen earlier, although the Defendant submitted the first appeal petition in the absence of lawful service of the original copy of the judgment of the first instance, but submitted the written withdrawal of appeal on March 11, 2015, the original copy of the judgment of the first instance against the Defendant was lawfully served on March 13, 2015, and thus, the Defendant may file a lawful appeal within two weeks thereafter. Thus, the second appeal petition submitted on the same day is also deemed a lawful appeal. Nevertheless, the lower court erred by misapprehending the legal principles as to the withdrawal of appeal, thereby adversely affecting the conclusion of the judgment.

4. Therefore, without further proceeding to decide on the grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kwon Soon-il (Presiding Justice)