[1] The measures to be taken by the court in case where a witness raises an objection against a summary judgment on a witness in absence under Article 311(1) of the Civil Procedure Act

[2] Requirements for imposing an administrative fine on a witness who is absent pursuant to Article 311(1) of the Civil Procedure Act

[1] Article 311(1) of the Civil Procedure Act, Article 250 of the Non-Contentious Case Litigation Act / [2] Article 311(1) of the Civil Procedure Act

Re-appellant

Changwon District Court Order 2007Na754 dated October 19, 2007

The order of the court below is reversed, and the case is remanded to the Changwon District Court Panel Division.

The grounds of reappeal are examined ex officio prior to the arrival of them.

Article 250(4) of the Non-Contentious Case Litigation Procedure Act provides that when a party raises an objection against a summary judgment of a fine for negligence, the court shall hear the party’s statement and render a new judgment. Thus, if a witness who did not appear without any justifiable reason pursuant to Article 311(1) of the Civil Procedure Act was tried a summary judgment of a fine for negligence pursuant to Article 250(1) of the Non-Contentious Case Litigation Procedure Act, and the witness raised an objection, the court shall again proceed to a trial of a fine for negligence after giving the witness an opportunity to state

According to the records, on September 10, 2007, the court below decided to impose a fine for negligence of 30,000 won on the re-appellant on the ground that the re-appellant was absent on June 14, 2007 and on July 19, 2007, and on September 12, 2007, the re-appellant was served with a certified copy of the decision of the fine for negligence and a writ of summons of examination on the date of examination of the above date of Sep. 19, 207, and submitted a written objection on Oct. 18, 2007, and the court below immediately did not appear on the date of examination of the re-appellant on Oct. 14, 2007, and did not err in the misapprehension of legal principles as to the above date of examination of the non-contentious Case Litigation Procedure Act, and on Oct. 19, 2007, the court below did not request the re-appellant to raise an objection to the aforementioned fine for negligence on the date of examination.

On the other hand, a fine for negligence on a witness shall be imposed when the witness fails to appear without any justifiable reason even after receiving a legitimate request for attendance, and only the witness who received a “legal request for attendance” shall be subject to the fine for negligence.

However, as seen above, the decision of the court below and the order of the court below on September 10, 2007 included the absence on the date of examination of the witness as of July 19, 2007 as one of the offenses. However, even upon examining the record, there is no evidence to prove that the Re-Appellant was duly summoned on the date of examination of the witness as of July 19, 2007. Thus, the order of the court below which included the above violation in the period of examination of the witness as of July 19, 2007, including the absence on the date of examination of the witness as of July 19, 2007, is unlawful.

Therefore, the order 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 on the bench.

Justices Kim Ji-hyung (Presiding Justice)