In a case where it is impossible to serve a duplicate of the petition of appeal in the appellate court, whether the presiding judge of the appellate court shall order the appellant to revise the address of the appellee within a reasonable period fixed pursuant to Article 402(1) and (2) of the Civil Procedure Act (affirmative), and in a case where the appellant fails to correct the address of the appellee within the said period, whether the appeal shall be dismissed by the order (affirmative)

[Majority Opinion] In a case where it is impossible for an appellate court to serve a duplicate of the petition of appeal, the presiding judge of the appellate court shall order the appellant to correct the address of the appellee within a reasonable period fixed pursuant to Article 402(1) and (2) of the Civil Procedure Act. In a case where the appellant fails to correct the address of the appellee within the said period, the appellate court has declared the legal principle that the appeal shall be dismissed by order, and the court’s practice related to the impossibility of serving the petition of appeal has also been operated on the basis of these legal principles. Such Supreme Court precedents are reasonable, and the reasons are as follows

① The attitude of the current precedents is more so in line with the interpretation of the text and text of Article 402(1) and (2) of the Civil Procedure Act, and considering the legislative history thereof.

According to the language and text of Article 402(1) and (2) of the Civil Procedure Act, in a case where a duplicate of the petition of appeal is not served on the appellee, the presiding judge of the appellate court shall order the appellant to revise the defects in the petition of appeal so that the duplicate of the petition of appeal may be served on the appellee. Here, “the correction of defects” means that the cause of impossibility of serving a duplicate of the petition of appeal should be corrected. Thus, if the cause of impossibility of serving a duplicate of the petition of appeal is due to the address of the appellee, the appellant should correct the address where the appellee can serve a duplicate of the petition of appeal

In light of the legislative history, where a duplicate of a complaint leads to impossible service, the presiding judge should issue an order to correct address and dismiss the complaint when the plaintiff fails to comply with such order, and where the duplicate of the petition of appeal reaches impossible service, the presiding judge should issue an order to correct address and dismiss the petition of appeal when the appellant fails to comply with such order.

② The current precedents can be understood as the meaning of sanctions against the appellant for failing to meet the minimum requirements necessary for the proceedings of the appellate trial.

(3) If the presiding judge of the appellate court orders the appellant to correct the address of the appellee to which a duplicate of the petition of appeal may be served, he/she shall not impose an excessive burden on the appellant to the extent that he/she cannot accept the appeal.

④ Since the order to dismiss the petition of appeal is pre-determined in practice, the order to dismiss the petition of appeal is a judgment that can sufficiently be predicted by the appellant.

(5) The current precedents are consistent with the future development direction for the faithfulness of the judgment of the first instance and the operation of the appellate court close to the subsequent trial.

[Dissenting Opinion by Justice Park Sang-ok, Justice Lee Ki-taik, and Justice Lee Dong-won] When considering the continuity of litigation procedures, the impossibility of delivering a duplicate of the petition of appeal is merely a fact that the document of lawsuit is impossible to be served while the lawsuit is pending; it is unreasonable for the appellant to care only for the appellant due to the impossibility of service even though the appellant was not caused by the impossibility of service of a duplicate of the petition of appeal; and considering the fact that the rejection order of the petition and the rejection order of the petition of appeal are essentially different trials, if the duplicate of the petition of appeal is impossible to be served, it shall not be permissible to issue an order to correct address to the appellant based on Article 402(1) and (2) of the Civil Procedure Act, or to dismiss the petition of appeal in the event of nonperformance

Article 27 of the Constitution, Articles 1, 174, 185, 190(1), 194(1) and (3), 254, 255, 274(1)1, 4, 390, 397(2), 398, 402(1) and (2), 424(1)4, 425, 428(1), and 430 of the Civil Procedure Act, Article 231(1) and (3), Article 254(1) of the former Civil Procedure Act (Amended by Act No. 4201, Jan. 13, 1990); Article 231(1) and 5, Article 397(2), Article 39 of the former Enforcement Rule of the Civil Procedure Act (Amended by Act No. 4201, Jan. 13, 199); Article 301(2) of the former Enforcement Rule of the Civil Procedure Act (see current Enforcement Rule 9)

Supreme Court Decision 4290Hun-Ba81 Decided March 23, 1957 (No. 5-1, 27) Supreme Court Decision 4290Hun-Ba43 Decided November 4, 1957 (No. 68Ma1029 Decided September 24, 1968) 71Ma317 Decided May 12, 197 (No. 199-2, 14) Supreme Court Decision 87Hun-Ba315 Decided April 11, 198 (Gong1989, 737) Decided 200Hun-Ba20 Decided November 20, 191 (Gong192, 258), Supreme Court Decision 200Hun-Ma1945 Decided 25, Oct. 24, 195 (No. 1989, 201)

Re-appellant

Daejeon High Court Order 2017Na14183 dated December 14, 2017

The reappeal is dismissed.

The grounds of reappeal are examined.

1. Case summary and key issue

A. Case summary

1) In the instant lawsuit brought by the Plaintiff (Appellants, hereinafter “Appellants”) against the Re-Appellants (Defendants, appellants, and hereinafter “Re-Appellants”), the first instance court rendered a judgment in favor of part of the appellant on September 13, 2017, and only the Re-Appellants appealed appealed on September 14, 2017.

2) Although the lower court intended to serve a duplicate of the petition of appeal on the appellee, it became impossible to serve the petition on October 13, 2017 on the ground that the recipient is unknown.

3) On October 18, 2017, the presiding judge of the lower court ordered the re-appellant to revise the address of the appellee within five days from the date of receiving the order of correction pursuant to Article 402(1) of the Civil Procedure Act, and the re-appellant directly received the order of correction of address on October 20, 2017.

4) The presiding judge of the court below ordered the rejection of the instant petition of appeal on December 14, 2017, since the re-appellant did not correct the respondent's address after 55 days from the date of receiving the order to revise the address. The re-appellant appealed appealed filed an immediate appeal on December 15, 2017.

B. Issues

The issue of this case is whether the presiding judge of the appellate court shall order the correction of address within a reasonable period fixed by the court of appeal in case where a duplicate of the petition of appeal is impossible to serve, and the presiding judge of the appellate court shall order the rejection of the petition of appeal when the appellant fails to comply

2. Feasibility of the legal principles of precedents

Where it is impossible for the appellate court to serve a duplicate of a petition of appeal in the appellate court, the presiding judge of the appellate court shall order the appellant to correct the address of the appellee within a given period pursuant to Article 402 (1) and (2) of the Civil Procedure Act. When the appellant fails to correct the address of the appellee within the given period, the appellate court has declared that the petition of appeal should be dismissed by order (see, e.g., Supreme Court Order 68Ma1029, Sept. 24, 1968; Supreme Court Order 71Ma317, May 12, 1971); and the court's practice related to the impossibility of serving a petition of appeal has also been operated on the basis of these legal principles. Such Supreme Court precedents are reasonable and should be maintained as follows.

A. The current attitude of judicial precedents is consistent with the interpretation of the text and text of Article 402(1) and (2) of the Civil Procedure Act, and it is more so in light of its legislative history.

1) Article 402 of the Civil Procedure Act provides, “Where a petition of appeal violates the provisions of Article 397(2), the presiding judge, etc. of the original instance has failed to issue an order under Article 399(1), or where it is impossible to serve a duplicate of the petition of appeal without attaching the stamp under the provisions of Acts, the presiding judge of the appellate instance shall order the appellant to correct the defects within a reasonable period fixed,” under paragraph (2) of the same Article, which provides, “When the appellant has failed to correct the defects within the period under paragraph (1), or the presiding judge of the original instance has not rejected the petition of appeal pursuant to Article 399(2), the presiding judge of the appellate instance shall dismiss the petition of appeal by his order.”

According to the language and text of the above provision of the law, in a case where a duplicate of the petition of appeal is not served on the appellee, the presiding judge of the appellate court shall order the appellant to revise the defects in the petition of appeal so that a duplicate of the petition of appeal may be served on the appellee. Here, “a correction of the defects” means that the cause of impossibility of serving a duplicate of the petition of appeal should be revised. Thus, if the cause of impossibility of serving a duplicate of the petition of appeal is due to the address of the appellee, the appellant should revise the address where the appellee can receive a duplicate of the petition of appeal. Therefore, if the appellant fails to correct the address of the appellee within a reasonable period prescribed by the presiding judge of the appellate court, it conforms with the language and text of Article 402(1) and (2) of the Civil Procedure Act.

2) Article 371 of the former Civil Procedure Act (amended by Act No. 4201 of Jan. 13, 1990) provides that Article 231 of the former Civil Procedure Act (amended by Act No. 4201 of Jan. 13, 1990) shall apply mutatis mutandis only to cases where a copy of a complaint cannot be served on the defendant. At the same time, the Supreme Court, where the defendant cannot be served on the defendant, the presiding judge shall order the plaintiff to correct the defendant's address within a reasonable fixed period, and where the plaintiff fails to correct his/her address, the presiding judge of the appellate court shall order the appellant to correct the respondent's address within a reasonable period, and interpreted that the appellate court shall issue an order to dismiss the petition of appeal where the appellant fails to correct the petition of appeal (see Supreme Court Order 71Ma317, May 12, 1971

Article 8 of the former Act on Special Cases concerning the Promotion, etc. of Lawsuit, which was enacted by Act No. 3361 on January 29, 1981, for the purpose of preventing delay of litigation, prompt realization of the rights and obligations of the people, and facilitating the settlement of disputes, grants the presiding judge of the court below the right to review a petition of appeal, which was amended by Act No. 4201 on January 13, 1990, and Article 368-2 on the right to examine a petition of appeal of the presiding judge of the court below was newly established as incorporated under the Civil Procedure Act, and Article 371 on the right to examine a petition of appeal of the presiding judge of the court below was defined as the same content as Article 231 and Article 232 on the right to examine a petition of appeal of the appellate court. The Civil Procedure Act was completely amended by Act No. 6626 on January 26, 200, and Article 368-2 and Article 371 of the former Civil Procedure Act were amended by Act No. 218,20,214,200.

In light of such legislative history, where a duplicate of a complaint leads to impossible service, the presiding judge should issue an order to correct address and dismiss the complaint when the plaintiff fails to comply with such order, and where a duplicate of the petition of appeal reaches impossible service, the presiding judge should issue an order to correct address and dismiss the petition of appeal when the appellant fails to comply with such order.

B. The current precedent can be understood as the meaning of sanctions as to the appellant’s failure to meet the minimum requirements necessary for the proceeding of the appellate trial.

The submission of a petition of appeal by a party to a lawsuit against the court of first instance to the appellate court is an act of requesting the appellate court to proceed with the appellate court judgment and thus, it is necessary for the appellant to file an appeal by meeting the minimum requirements necessary to proceed with the appellate court judgment. The presiding judge of the appellate court may demand the appellant to revise the petition of appeal if he/she considers that the appellate court failed to meet the minimum requirements necessary to proceed with the appellate court judgment at the stage of examining the petition of appeal. However, if the appellant fails to comply with the above request for correction by the presiding judge of the appellate court, it may be evaluated that the appellant has taken the attitude that the appellate court did not intend to proceed with the appellate court judgment or was unable to commence the appellate court judgment. The current precedent is a sanction against the immediate appellant’s foregoing attitude, and if the appellant fails to comply with the order for correction of address

C. The presiding judge of the appellate court ordering the appellant to correct the address of the appellee on which a duplicate of the petition of appeal can be served does not impose an excessive burden to the extent that the appellant cannot be accepted.

1) The appellant may fully implement the order of the presiding judge to rectify address by taking the following measures:

A) In practice, if the appellant submits a written correction of address to the appellate court, he/she will comply with the order to correct the address unless there are special circumstances. If the address of the appellant is not changed, it is sufficient that the appellant only states or indicates that there is no change of address in the written correction of address.

B) According to the proviso of Article 29(2)2 of the Resident Registration Act and Article 13(1) [Attachment Table]4(a) of the Enforcement Rule of the Resident Registration Act, the appellant may apply for the perusal of the respondent’s resident registration card or the issuance of a certified copy or abstract of the respondent’s resident registration card to the relevant agency based on an order to rectify address issued by the presiding judge of the appellate court. The appellant may ascertain the respondent’s current resident registration address and revise the place of service by the appellee’s address on his/her resident registration.

C) The appellant may apply for the service of a copy of the petition of appeal before or after a legal holiday or sunrise or sunrise by an execution officer, depending on the reasons or circumstances in which it is impossible to serve a duplicate of the petition of appeal (Article 190(1) of the Civil Procedure Act), and may request the appellate court to commission, etc. an investigation deemed necessary to revise the address in accordance with specific cases (see Supreme Court Order 2014Ma282, Jul. 7, 2015).

D) If the appellant’s place of service is no longer known, a service by public notice may be applied for by public notice (Article 194(1) of the Civil Procedure Act).

2) In light of the purport that the order to correct the address to the appellant is an excessive burden to the extent that it is impossible to admit the appellant, the Supreme Court found it unlawful to order the appellant to correct the address without providing a reasonable period for correction, and to dismiss the petition of appeal even though the considerable period has not elapsed (see Supreme Court Order 91Ma620, 621, Nov. 20, 191). In addition, the Supreme Court has to make the best effort for the delivery of the duplicate of the petition of appeal before the rejection of the petition of appeal before the appellate court rejects the petition of appeal. In addition, in cases where other addresses than the respondent’s address stated in the petition of appeal or the written decision are in the court records, if the appellant’s address is in the court records, the appellate court attempted to deliver the petition of appeal to such other address, and has failed to perform the order immediately and has not been served as the address stated in the petition of appeal, and the rejection of the petition of appeal on the ground that the appeal was not correct measure (see, e.g., Supreme Court Order 20164Ma4, Apr. 2016).

D. In practice, the order to dismiss the petition of appeal is pre-determined in the order to correct address, so the order to dismiss the petition of appeal can be sufficiently predicted by the appellant.

In practice, the order to correct the address on the ground that the delivery of a duplicate of the petition of appeal is impossible is indicated to the effect that the petition of appeal may be dismissed on the basis of Article 402 of the Civil Procedure Act unless the correction of address is made within the period stipulated by the order. Accordingly, if the appellant fails to comply with the order to correct the address, he/she may sufficiently predict the fact that the petition of appeal

E. The current precedent also accords with the future development direction in order to faithfully realize the first instance trial and to operate the appellate trial close to the post-trial trial.

It is desirable that all issues and methods of attack and defense should be present in the first instance trial, and a faithful trial through the organization of sufficient issues and broad evidence examination should be resolved in the early stage. The appellate court of civil procedure, in principle, is an ideal to carry out the nature as a legal judgment called unification of law interpretation. This is also a way to contribute to the prompt realization of the rights and obligations of the people.

Where a duplicate of the petition of appeal is unable to be served, the view that an order to dismiss the petition of appeal is unreasonable may be based on the recognition that the court of first instance alone is insufficient to relieve the parties to the lawsuit. However, if the court of first instance faithfully proceeds, it cannot be readily concluded that the appellant who lost the court of first instance is guaranteed the right to a trial guaranteed by the Constitution only if he/she ought to undergo the judgment in the appellate trial. All citizens have the right to receive a judgment in accordance with Acts as fundamental rights under the Constitution (Article 27 of the Constitution), and do not necessarily include the right to receive the judgment in the appellate trial (see, e.g., Constitutional Court en banc Order 2009Hun-Ba

The order to dismiss the petition of appeal has the meaning of the sanction against the appellant for not taking the minimum measures to proceed with the appellate trial, and its purpose is justifiable. In the event the appellant fails to comply with the order to dismiss the petition of appeal, imposing the risk for which the judgment of the first instance may become final and conclusive by receiving the order to dismiss the petition of appeal is stipulated in Article 402, Article 402

In light of such institutional meaning and role of the order to dismiss the petition of appeal, the current precedents can contribute to the settlement of legal disputes in early stages by effectively punishing the appellant who seeks to prevent the appeal against the loyalty of the judgment of the first instance court and to delay the proceedings against the trust and good faith. Therefore, the current precedents also accord with the future development direction, such as the loyalty of the judgment of the first instance court and the ex post facto review of the appellate court.

3. Determination as to the instant case

The presiding judge of the appellate court, as a presiding judge of the appellate court, issued an order to dismiss the petition of this case on the ground that the re-appellant did not correct the respondent's address within the period specified in the order to rectify address within the period pursuant to Article 402 (1) and (2) of the Civil Procedure Act, is in accordance with the current precedents concerning the interpretation of Article 402 (1) and

4. Conclusion

Therefore, the reappeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices, except for a dissenting opinion by Justice Park Sang-ok, Justice Lee Ki-taik, and Justice Lee Dong-won, and a concurrence with the Majority by Justice Min You-sook, Justice Kim Seon-soo, and Justice Noh Tae-tae

5. Dissenting Opinion by Justice Park Sang-ok, Justice Lee Ki-taik, and Justice Lee Dong-won

A. The Majority Opinion states that, where a duplicate of the petition of appeal is impossible to be served, the presiding judge of the appellate court shall order the appellant to revise the address of the appellee within a reasonable period fixed on the basis of Article 402(1) and (2) of the Civil Procedure Act, and where the appellant fails to correct the address of the appellee within the said period, the Supreme Court’s order shall be maintained that the appeal shall be dismissed.

However, in light of the continuity of litigation procedures, it is not permissible to issue an order to correct address to the appellant based on Article 402(1) and (2) of the Civil Procedure Act, or to dismiss the petition of appeal when a copy of the petition of appeal is not served, considering the following: (a) the failure to serve a copy of the petition of appeal is merely the fact that the document of lawsuit is not served while the lawsuit is pending; (b) the appellant is not causing the impossibility to serve a copy of the petition of appeal; and (c) the disadvantage caused by the impossibility to serve a copy of the petition of appeal is unreasonable; and (d) the rejection order and rejection order are essentially different trials; and (e) the rejection order are essentially different. In addition, if the duplicate of the petition of appeal is impossible to serve a

B. 1) Even though the service of a duplicate of the petition of appeal is merely a part of the service of the lawsuit documents while the lawsuit is pending, unlike other litigation documents, it is not treated fairly by the appellate court to view the disadvantage of the appellant solely due to the impossibility of service of a duplicate of the petition of appeal, unlike other litigation documents.

A) In a case where the appellant has submitted a petition of appeal to the first instance court, the court of first instance has already been served the documents of lawsuit to the parties to the lawsuit in the previous litigation proceedings, and the judgment of the court of first instance has been rendered. As long as the period for appeal against the judgment of the court of first instance has not expired, the litigation proceedings are continued without termination. Therefore, serving a duplicate of the petition of appeal is not

In general, in a case where a document for a lawsuit is unable to be served while the lawsuit is pending, the court shall attempt to serve the document again for the specific reasons of the impossibility of serving the document, or finally serve the document for the lawsuit by dispatch or service by public notice. This is a measure to continue the litigation proceedings. The mere fact that the document for a lawsuit is unable to serve while the lawsuit is pending cannot terminate the litigation proceedings as it is for the final settlement of legal disputes. This is because the litigation procedures are for the settlement of legal disputes, and should continue to proceed until the objective is achieved. However, it is against the intrinsic purpose of the litigation procedure, such as the resolution of legal disputes, to terminate the litigation proceedings solely on the ground that the address was not

The Majority Opinion deems that the failure to serve a duplicate of the petition of appeal should be treated differently from that of other litigation documents, given that the duplicate of the petition of appeal is distinct from that of other litigation documents. However, under the Civil Procedure Act, the appellate court is basically based on the first instance court’s litigation documents and the outcome of the proceedings. Even if an appellate court’s litigation proceedings have commenced by submitting a petition of appeal, it is only one of the litigation procedures that have been served in the first instance court proceedings. Therefore, there is no reason to treat only the impossibility of serving a duplicate of the petition of appeal among several litigation documents which have been served after the continuation of litigation proceedings. Even if a new lawsuit is pending, the Majority Opinion does not order the presenter of the document of appeal to revise the address of the other party to the lawsuit on the ground that “the copy of the petition of intermediate confirmation, counterclaim, and change of claim” which means the document of lawsuit, “the document of lawsuit cannot be served,” and thus, in practice, the court deems it impossible to serve a copy of the petition of appeal as a means of service by public notice or service by public notice.

B) If we look at the location of the responsibility for which a duplicate of the petition of appeal is not served, it shall be deemed that the appellant is liable for the following reasons.

Considering the legislative purport of Article 185(1) of the Civil Procedure Act stipulating that “when a party, legal representative, or attorney alters the place where a service is to be made, the purport thereof shall be immediately reported to the court” and Article 1(2) of the Civil Procedure Act provides that “a party to a lawsuit shall faithfully perform the lawsuit in accordance with the good faith,” a party to a lawsuit may be deemed to have an obligation to take appropriate measures so that the document for the lawsuit may be served properly after the continuation of the lawsuit is made. The delivery of the document for the lawsuit is an essential procedure for the proceeding of the lawsuit, and if the document for the lawsuit is not served properly, it would hinder the fair and prompt proceeding

The defendant at the stage where the duplicate of the complaint has not yet been served is unaware of the fact of the complaint itself, so it cannot be said that he/she has a duty to take measures so that the duplicate of the complaint may be served. On the other hand, the respondent is a party to the lawsuit who is generally aware of the fact that the proceedings of the first instance court were conducted and the judgment of the court of first instance is pronounced, and that the other party to the

Therefore, the appellee shall be deemed to have a duty to take appropriate measures so that a duplicate of the petition of appeal can be served properly. If the first instance court served a lawsuit against the appellee by serving the documents of lawsuit, a duplicate of the petition of appeal may also be served by serving by public notice. Nevertheless, solely taking the responsibility to correct the address due to the impossibility of serving a duplicate of the petition of appeal and any subsequent disadvantage to the appellant solely due to the impossibility of serving a duplicate of the petition of appeal does not treat the appellant and the appellee fairly.

2) Since the order to dismiss the petition of appeal is remarkably different in the legal meaning or effect of the lawsuit when compared to the order to dismiss the petition of appeal (Articles 255(2) and 254 of the Civil Procedure Act), it does not accord with the balance to apply the legal principles concerning the order to correct the address and the order to dismiss the complaint when the order is not complied with where the duplicate of the petition of appeal is impossible to serve.

The continuation of a lawsuit following the filing of a suit takes effect only when a duplicate of the complaint is served (see Supreme Court Decision 87Meu3155, Apr. 11, 1989, etc.). Therefore, even if the complaint is dismissed, the lawsuit is still pending in the stage where the duplicate of the complaint cannot be served, and even if the complaint is dismissed, the plaintiff is not at any disadvantage without the validity of the lawsuit. There is no particular obstacle to re-instigation of a suit concerning the same claim by the plaintiff ordered to dismiss the complaint.

On the other hand, the effect of the final judgment of the first instance following the filing of a petition of appeal shall arise by submitting a petition of appeal to the first instance court. The continuation of the lawsuit that occurred prior to the filing of a petition of appeal shall be maintained, and the delivery of a duplicate of the petition of appeal shall be irrelevant to the continuation of the lawsuit that has already occurred. In such a situation, when the order to dismiss the petition of appeal becomes final and conclusive, the judgment of the first instance court against which the appellant lost is final and conclusive, and the appellant cannot make any assertion contrary to the contents of legal judgment included in the text of the final and conclusive judgment in a subsequent lawsuit due to the res judicata effect of the judgment of the first instance, and the appellant shall not make any assertion contrary to the contents

An order to dismiss a complaint and an order to dismiss a petition of appeal may be deemed identical in terms of the fact that the procedures cannot be followed any more due to the impossibility of serving the complaint and the petition of appeal. However, the order to dismiss a petition of appeal means that the progress of the proceedings is no longer possible but only if it is desired, a new suit may be instituted. On the other hand, the order to dismiss a petition of appeal is the meaning that the proceedings should no longer be proceeded and the legal dispute

In a case where a duplicate of a complaint is impossible to be served, only the plaintiff becomes the subject of the lawsuit between the court and the party. Considering the circumstance in which the lawsuit commences upon the plaintiff’s request, it is evident that the defendant’s address ought to be identified by the plaintiff. This is close to a general common sense for dealing with affairs. If, however, Article 255 of the Civil Procedure Act on the impossibility of serving a duplicate of a complaint does not govern, the fact that the plaintiff has to clarify the defendant’s address for the proceeding of civil procedure ought to be naturally recognized. However, in a case where a duplicate of a petition of appeal is impossible to be served, it is entirely different from the case where the court and both parties become the subject of the lawsuit, since the lawsuit is still pending between the court and the appellant and the appellant

Although the Supreme Court did not serve a duplicate of the complaint and proceeded with the oral proceedings without being served, it constitutes a serious violation of the litigation procedures (Supreme Court Decision 2010Da108388 Decided April 28, 201), the Supreme Court held that the defect not served with the duplicate of the petition of appeal does not constitute a cause that may affect the conclusion of the judgment unless the other party objects to an objection without delay (Supreme Court Decision 4290Da81 Decided March 23, 1957; Supreme Court Decision 4290Da433 Decided November 4, 1957). In light of this, the legal meaning and importance of the delivery of the duplicate of the complaint and the delivery of the duplicate of the petition of appeal can be entirely different.

In short, the case where a duplicate of a complaint is impossible to be served and where a duplicate of a petition of appeal is impossible to be served is entirely different from the case where a copy of the petition of appeal is entirely different. If it is impossible to serve a duplicate of the petition of appeal, the first chapter order the plaintiff to correct the defendant’s address at the stage prior to the trial where the lawsuit is pending. Thus, even if it is impossible to serve a duplicate of the petition of appeal, the appellate court cannot simply mean that the presiding judge may order the appellant to correct the respondent’s address while the lawsuit is pending. In addition

3) Even according to the language and text of the provisions related to the Civil Procedure Act, where a duplicate of the petition of appeal is impossible to serve, it cannot be interpreted that the appellant may order the appellant to correct the address of the appellee.

According to the language and text of Article 402(1) of the Civil Procedure Act, where it is impossible to serve a duplicate of the petition of appeal, the presiding judge of the appellate court shall order the appellant to revise the defects, but does not specify what is the defects. Therefore, what is the “accidents” that can be ordered to correct to the appellant pursuant to Article 402(1) of the Civil Procedure Act is a matter of interpretation.

For instance, if the appellant is unable to serve a duplicate of the petition of appeal because he/she did not attach the written payment of the service charge to the petition of appeal, the presiding judge of the appellate court may interpret that the appellate court may order the appellant to pay the service charge (see Supreme Court Order 94Ma2452, Oct. 5, 1995). This is because the “defect” which did not pay the service charge exists from the time of submission of the petition of appeal.

However, the fact that the address of the appellee stated in the petition of appeal is not a legal place for the following reasons cannot be interpreted as “defects” which may order the appellant to correct under Article 402(1) of the Civil Procedure Act. Therefore, in a case where a duplicate of the petition of appeal is impossible to serve, the appellant cannot be ordered to correct the address of the appellees based on Article 402(1) of the Civil Procedure Act.

Article 397(2) of the Civil Procedure Act merely provides for “the indication of the parties, legal representatives, and the judgment of the court of first instance and the purport of an appeal against such judgment” as necessary matters to be stated in the petition of appeal (Article 398). However, the provisions concerning the legal brief apply mutatis mutandis to the petition of appeal (Article 274(1)1). The purport that the provisions concerning the legal brief shall apply mutatis mutandis to the petition of appeal is that the matters to be stated in the petition of appeal is allowing the performance of the function as the legal brief, and thus, the issue of whether to state “matters to be stated in the legal brief” in the petition of appeal is the matter of choice of the appellant, and even if the “matters to be stated in the legal brief” are not stated in the petition of appeal, it does not affect the validity of the petition of appeal. If it is interpreted as necessary matters to be stated in the petition of appeal, it cannot be deemed that there is a need to be an “statement for defense against the other party’s claim and method of attack” (Article 274(1)5).

Therefore, even if the address of the appellee is not specified in the petition of appeal at the time of filing the petition of appeal, the petition of appeal is legitimate. Therefore, at the time of receiving the petition of appeal, the presiding judge cannot order the appellant to write the address of the appellee in the petition of appeal. However, since the appellate court attempted to serve a duplicate of the petition of appeal but failed to serve it, it is contradictory that the appellate court can order the appellant to correct the address of the appellee on the ground that the appellant should have properly entered the address of the appellee in the petition of appeal only when it comes to the time.In the first place, the appellant did not have a duty to enter the address of the appellee in the petition of appeal, and since a duplicate of the petition of appeal is impossible to serve, it cannot be deemed that such obligation newly exists on the appellant.

Article 274(1)1 of the Civil Procedure Act provides that a party’s address as one of the matters to be entered in the briefs, but this provision is merely a clause that is de facto private in practice. The purport of having the party’s address entered in the briefs is to specify the party concerned and serve the briefs. However, barring any special circumstance, in the phase in which the briefs are submitted, the specific nature and service of the party concerned is not an issue. Service of the briefs is sufficient for the court to execute the briefs as the documents were served prior thereto. This is not a practical example of entering the party’s address in the briefs. This is true in the case of a duplicate of the petition of appeal. This is true in the case of a duplicate of the petition of appeal. This is not a problem in the process of submitting the petition of appeal, and it is sufficient for the court to serve a copy of the petition of appeal as if the documents were served prior to the filing of the petition of appeal. Considering this fact, it is unreasonable to interpret that the petition of appeal should apply mutatis mutandis to Article 274(1)1)1 of the Civil Procedure Act.

4) In a case where a duplicate of the petition of appeal is impossible to be served, the presiding judge of the appellate court may take measures to confirm the place of service by the appellee by himself/herself, and if it is no longer possible to identify the place of service by the appellee even after taking such measures, the presiding judge of the appellate court may decide to serve a duplicate of the petition of appeal by public notice pursuant to Article 194(3) and (1) of the Civil Procedure Act, but the presiding judge of the appellate court may interpret that the order of rejection of the petition of appeal may be issued when

Since the first instance judgment against the appellant becomes final and conclusive when an order to dismiss the petition of appeal becomes final and conclusive, it becomes a serious disadvantage to the appellant under the Civil Procedure Act. However, as seen below, the presiding judge of the appellate court may take necessary measures to confirm the place where the appellant is served, such as the direction of lawsuit, verification of address on the record, entrustment of investigation, etc., and may order the appellant to serve a duplicate of the petition of appeal in order to avoid delay in the lawsuit in case where it is no longer possible to identify the place where the appellant is served even if all such measures were taken (Article 194(3) and (1) of the Civil Procedure Act). In practice, the appellate court’s information verifiable by the correction of address of the appellant cannot be deemed more superior to the information collected by the presiding judge of the appellate court on its own. In addition, when a duplicate of the petition of appeal is not served, the presiding

In cases where a duplicate of the petition of appeal is impossible to serve a copy of the petition of appeal, the order to revise the address to the appellant, and the order to dismiss the petition of appeal is not issued or the respondent's address is found, but it is no longer known that whether to serve the duplicate of the petition of appeal depends solely on the discretion of the presiding judge of the appellate court, considering the legal effect of the petition of appeal on the appellant, and the substantial difference between the legal effect of the appeal and that of the appeal, it cannot be accepted. If there are any presiding judge of the appellate court who exercises different discretion in regard to the practice of serving the duplicate of the petition of appeal, the name of each lawsuit may be completely changed depending on which the appellant who is placed in the same place where the duplicate of the petition of appeal becomes impossible to serve a copy of the petition of appeal is tried by any appellate court. This result does not coincide with the legal sentiment

(C) As seen earlier, in a case where the appellate court rendered a final and conclusive judgment without knowing the fact that the appellate court had commenced by serving a duplicate, etc. of the petition of appeal as seen earlier, the appellant is the length to recover his/her interests in the lawsuit by making a subsequent completion. On the other hand, where it is impossible to serve a duplicate of the petition of appeal, such as the Majority Opinion, if the appellant orders the appellant to correct address and dismiss the petition of appeal when refusing to comply with the order, the appellant does not have any way to recover the interests in the lawsuit, unless

As such, if a duplicate of the petition of appeal is impossible to be served, it goes against the principle of proportionality under the Constitution to interpret that the order to correct address, which is only a measure unfavorable to the appellant, may be issued only in the absence of a plan to harmonize the interests of the appellant and the appellee in the lawsuit.

5) In light of the fact that the electronic litigation system of a civil lawsuit was established on the premise that the litigants should take measures to receive a service by themselves, it is unreasonable to view that the appellant bears the responsibility to correct the Appellants’ address.

Article 11(1) of the Act on the Use, etc. of Electronic Documents in Civil Procedure, Etc. provides that electronic service shall, in principle, be made by registering users on the electronic information system and by sending text messages to a person who has consented to the electronic lawsuit. Article 11(3) provides that “Electronic service shall be made by registering the electronic documents to be served by a Junior Administrative Officer, etc. in the electronic information processing system and electronically notifying the person to be served with the electronic data processing system,” and Paragraph (4) of the same Article provides that “If it is not confirmed within one week from the date of notification of the registration, it shall be deemed to have been served on the person to be served with the electronic documents: Provided, That if it is not confirmed within one week from the date of notification of the registration, it shall be deemed to have been served on the date of notification of the registration.” Furthermore, Article 26(1) of the Rules on the Use, etc. of Electronic Documents in Civil Procedure, enacted with the delegation of the above Act, provides that “the electronic documents shall be sent to the electronic mail address entered by the registered user in the electronic litigation system, and text messages may

Electronic mail address and mobile phone number are essential information for electronic service, which must be entered in the electronic information system by a person subject to electronic service at the time of user registration. If a person subject to electronic service did not have to change the electronic mail address and mobile phone number even if the person subject to electronic service but did not have to change the electronic mail address and the mobile phone number, electronic service is recognized even if electronic notice was given to the former mobile phone number and e-mail address. As can be seen, the electronic litigation system was established on the premise that the litigation party should take measures to enable him/her to receive electronic notice. The risk of not receiving electronic notice is borne by the person subject to electronic service, and the risk is not transferred

Therefore, if the appellant is a person to receive electronic service, it does not occur if the appellant is not a person to receive electronic service, due to the reason that the appellee's place of service was involved. Even if the appellee changed the e-mail address and the mobile phone number, and thus the duplicate of the petition of appeal is de facto impossible to be served, it is presumed that the appellee is responsible for the appellant. As a result, the appellant does not bear any risk of being issued an order to dismiss the petition of appeal due to the impossibility of being served a duplicate of the petition of appeal. However, according to the existing precedents, if the appellee is not a person to receive electronic service, the appellant bears any risk of being issued an order to dismiss the petition of appeal due to the impossibility of being served a duplicate of the petition of appeal. Whether the appellant is to receive a duplicate of the petition of appeal by electronic service is irrelevant to the appellant. It is unreasonable to completely change whether the appellant bears the risk of rejection of the petition of appeal depending on the incidental circumstances unrelated to the appellant.

6) The existing precedents declared by the Supreme Court are inconsistent with the current practice of the Supreme Court that serve the duplicate of the petition of appeal.

Article 425 of the Civil Procedure Act provides that “Except as otherwise provided, the provisions of Chapter I shall apply mutatis mutandis to the litigation procedures of a final appeal and a final appeal. Accordingly, Article 402 of the Civil Procedure Act concerning the right to examine a petition of appeal shall apply mutatis mutandis to the litigation procedures of a final appeal. In other words, Article 402 of the Civil Procedure Act applies commonly to both the examination of a petition

However, the current practice of the Supreme Court does not issue an order to correct address to appellant when a duplicate of the petition of appeal is not served with Appellee, and accordingly, does not issue an order to dismiss the petition of appeal on the ground that the order to correct address is not complied with. The Supreme Court finally serves a duplicate of the petition of appeal by service or service by public notice. The Supreme Court has declared through the previous precedents that the appellate court should issue an order to correct address when a duplicate of the petition of appeal is unable to be served with respect to the appellate court and dismiss the petition of appeal, but the appellate court is trying to render a judgment with different contents. The Supreme Court seems to have contradictory attitude that the Supreme Court requests the lower court to render a judgment not to be served with itself. Whether the citizens can understand the conflicting attitude with the same legal provisions in the court?

Cruelly, the court of final appeal is a legal judgment, and there is almost no disadvantage to Appellee even if the duplicate of the petition of final appeal is not served by ordinary means, so that the service of a duplicate of the petition of final appeal and the service of a duplicate of the petition of final appeal may be argued to be another problem. However, the meaning and importance of the Civil Procedure Act that requires the service of a duplicate of the petition of final appeal to Appellee are not different from that of the service of a duplicate of the petition of final appeal. Appellee also may also participate in the final appeal procedure by being served with a duplicate of the petition of final appeal (Article 428(2) and (1) of the Civil Procedure Act). In other words, Appellee may submit a written answer within 10 days from the date of receipt of a duplicate or a certified copy of the petition of final appeal (Article 430 of the Civil Procedure Act), and the written answer is used as the psychological data of the court of final appeal (Article 430 of the Civil Procedure Act).In the final appeal, for example,

The majority opinion is based on the fact that Article 402 of the Civil Procedure Act concerning the right to examine a petition of appeal provides the same content as that of Articles 255 and 254 concerning the right to examine a petition of appeal. However, it is more evident that Article 402 of the Civil Procedure Act applies to the appellate court and the final appeal.

7) Since service is conducted ex officio by the court, it cannot be deemed as a national aspect to which the principle of pleading and partyism apply.

Article 174 of the Civil Procedure Act provides, “Service shall be made ex officio by the court, except as otherwise provided for in this Act.” This is intended to secure the stability and certainty of the procedure by promptly, timely, and clarifying the service in a civil lawsuit. The principle of pleading and the principle of parties, which is the basic ideology of civil procedure, does not have any relationship with the service of documents in civil procedure. Therefore, in the country where the delivery of a duplicate of the petition of appeal is impossible, the appellant cannot be responsible for correcting the address of the respondent on the ground of the principle of pleading and the principle of parties. If the service is made once as the duty borne by the court, the court shall continue the service, and the burden of the service shall not be exceeded against the appellant.

The issues of this case are not to eliminate any disadvantage in the lawsuit due to the lack of capacity to serve a duplicate of the petition of appeal between the court and the party to the lawsuit, or due to the lack of capacity to perform the lawsuit by the appellant, under the circumstances where it is impossible to serve a duplicate of the petition of appeal, the court and the party to the lawsuit. If it is impossible to serve a duplicate of the petition of appeal, it is not related to the lack of capacity to perform the lawsuit by the appellant to issue an order to revise address based on Article 402(1) and (2) of the Civil Procedure Act.

C. In full view of the discussions so far, if a duplicate of the petition of appeal is impossible to be served, the proceedings of the appellate court will proceed as follows.

1) The presiding judge of the appellate court may not order the appellant to revise the address of the appellee on the basis of Article 402(1) and (2) of the Civil Procedure Act, and therefore, may not order the appellant to dismiss the petition of appeal on the ground of such violation.

2) However, the presiding judge of the appellate court needs to make every effort as follows to serve a duplicate of the petition of appeal on the appellant (see Article 1(1) of the Civil Procedure Act). This is because the court shall endeavor to ensure that litigation procedures are conducted fairly, rapidly, and economically (see, e.g., Supreme Court Decision 201Ma4026, Apr. 16, 2014). The presiding judge of the appellate court may request the appellant to provide cooperation necessary to confirm the place where the appellant is served, or to recommend the correction of address, etc. through the direction of appropriate litigation. In addition, the presiding judge of the appellate court shall attempt to deliver a duplicate of the petition of appeal to other address than the address of the appellant stated in the petition of appeal or the written judgment, if any address other than the address of the appellant exists in the court of appeal (see, e.g., Supreme Court Order 2014Ma4026, Jul. 7, 2015). 202>

3) In a case where the presiding judge of the appellate court is no longer aware of the place where the appellee was served with the best efforts to serve a duplicate of the petition of appeal, it is sufficient to serve a duplicate of the petition of appeal by public notice (Article 194 of the Civil Procedure Act). This is because the result of such efforts does not lack to confirm the requirements for service by public notice to the appellee. Accordingly, the appellate court judgment may proceed.

However, even if the appellant was served with the documents of the lawsuit at the first instance court, the appellate court's judgment held that the place cannot be deemed to constitute "the place where the documents of the lawsuit were served in the previous place" under Article 185 (2) of the Civil Procedure Act, unless the documents of the lawsuit have been served at the appellate court (see Supreme Court Decision 2011Da85796, Jan. 12, 2012). Thus, the issue of whether the copies of the petition of appeal can be served by means of delivery of a copy of the petition of appeal shall be excluded from the issue. However, as seen earlier, the Supreme Court's practice merely points out that the copy of the petition of appeal is served by means of delivery of the documents

4) Subsequent to the appeal, a notice of the date of pleading, etc. is served on the appellant by public notice as well as by the notice of the date of pleading, and the original copy of the appellate judgment is also served by public notice, barring any special circumstance, the appellee may be deemed to have known of the fact that the appellate trial procedure was in progress, barring any special circumstance. This constitutes a case where the appellee was unable to comply with the peremptory period due to a cause not attributable to him/her, and thus, the appellee may subsequently complete the appeal within two weeks from the date on which such cause ceases to exist (within 30 days if the cause ceases to exist in a foreign country at the time of the extinguishment of the cause) (see Supreme Court Decision 95Da21365, May

5) If the appellant subsequently completed the appeal for the foregoing reason, the appellee is deemed to have infringed upon the rights conferred by the procedure as a party. In such a case, the provisions of Article 424(1)4 of the Civil Procedure Act may apply mutatis mutandis to the case where a party was not represented legally by an agent. Thus, the appellate court shall reverse ex officio the judgment of appeal (see, e.g., Supreme Court Decision 95Da21365, May 30, 197). Accordingly, the procedural status of the appellee may be balanced protection.

6) However, the case where a petition of appeal for subsequent completion is submitted is different. The situation where a petition of appeal for subsequent completion has been submitted is different. It is difficult to expect that a lawsuit for subsequent completion has been completed, rather than the status where a lawsuit for subsequent completion has been pending, and that an appellant may file an appeal for subsequent completion. Therefore, where a petition of appeal for subsequent completion is unable to be served on the appellee, it is difficult to proceed with the procedure premised on the continuation of the lawsuit. Therefore, the petition of subsequent completion should state the address of the appellee corresponding to the complaint, and where it is impossible to serve a duplicate of the petition of subsequent completion, it is reasonable to interpret that the petition of subsequent completion may be dismissed unless the appellant revises it.

D. The grounds cited in the Majority Opinion are briefly opposed to the foregoing.

1) The Majority Opinion deems that the existing precedents conform to the interpretation of Article 402(1) and (2) of the Civil Procedure Act.

However, as seen above, Article 402(1) of the Civil Procedure Act does not directly stipulate whether an appellant may be ordered to correct the address of the appellee in cases where a duplicate of the petition of appeal is impossible to be served, and the address of the appellant is not necessary to be stated in the petition of appeal. In addition, Article 402(1) and (2) of the same Act, which is the provision of the same Act, shall apply mutatis mutandis to the service of a duplicate of the petition of appeal, is currently being served by delivery or service by public notice. In light of this, it is doubtful whether the Majority Opinion’s position conforms to the language and text of Article 402(1) and (2) of the Civil Procedure Act.

2) As to the meaning of the previous precedents, the Majority Opinion states that the meaning of the sanction against the appellant for failing to meet the minimum requirements necessary for the proceeding of the appellate trial, and that the order to rectify address does not impose an excessive burden on the appellant, and that the order to dismiss the petition of appeal is merely a prior notice given in the order to correct address.

However, the issue of this case is irrelevant to the issue of this case. The issue of this case is whether an order to correct the address may be issued to the appellant for reasons of impossibility of being served with a duplicate of the petition of appeal. We discuss whether the order to correct the address can be implemented on the ground of impossibility of being served with a duplicate of the petition of appeal. This is an area outside other areas. It does not mean that the appellant can easily implement the order to correct the address. It does not serve as a ground for the appellant to have the obligation to correct the address.

In addition, as seen earlier, the address of the appellee is not necessary to be stated in the petition of appeal, and the appellant shall be deemed not to have any obligation to inform the appellate court of the address of the appellee. Therefore, the existing precedents are merely imposing sanctions on the ground of the violation of the obligation not borne by the appellant.

In practice, the existing precedents cannot be justified only because the order to dismiss the petition of appeal is notified in advance of the order to correct the address. This is because the demand of the appellant to do an unobligatory act itself is unfair, and the unfair demand cannot be justified only because the notice of sanction was given in advance of unfair demand.

The Majority Opinion states that the right to a judgment in an appellate trial is not included in the constitutional right to a trial. However, it is evident that a party to a lawsuit who has lost in the first instance pursuant to Article 390 of the Civil Procedure Act has the right to appeal. The Majority Opinion states that the order to dismiss a petition of appeal may become final and conclusive on the ground that the appellant did not comply with the order to correct the address even though the appellant does not have a duty to correct the address, on the ground that the appellant did not comply with

3) The Majority Opinion also accords with the future development direction in order to faithfully realize the judgment of the first instance court and to operate the appellate court close to the ex post facto trial.

However, there is no relationship between the instant issues and the instant judgment of the first instance court. In the event that a duplicate of the petition of appeal is impossible to be served, the first instance court’s judgment is to be faithfully rendered by ordering the rejection of the petition of appeal on the grounds of non-compliance with the order to rectify address, as stated in the Majority Opinion, and it cannot be concluded that the first instance judgment is to proceed with the appellate trial. On the contrary, the first instance court’s judgment should be faithfully rendered regardless of whether to dismiss the petition of appeal on the grounds of non-compliance

The majority opinion argues to the effect that the order to correct address due to the impossibility of delivering a duplicate of the petition of appeal and that such order is a system to prevent the appeal against the other party, but there is no relation between the suppression of appeal against the other party and the order to revise address and its objection, and the order to dismiss the petition of appeal shall not be operated to such purport.

E. 1) It is inferred that the legal principles of the existing precedents have been maintained for a long time in practice without any particular question is attributable to the following perspective or concept. In other words, there is a view that the order to correct address due to the impossibility of delivering a copy of the petition of appeal and the procedure of the order to dismiss the petition of appeal following the refusal is very similar to the procedure of the order to correct address due to the impossibility of delivering a copy of the petition of appeal and the rejection of the petition of appeal following the refusal of the order to dismiss the petition of appeal. In addition, the appellant is the active party of the appellate court, who is in the position of the first instance court

2) However, the foregoing view or concept is based on the fact that the process of submitting a duplicate of the petition of appeal has already been established and the delivery of the documents of lawsuit to the litigants is a situation where the delivery of the documents of lawsuit has been lawfully made. Unlike the Plaintiff before the continuation of lawsuit is not yet served due to the lack of a duplicate of the petition, the appellant is a party to the lawsuit who has undergone the first instance trial proceedings after the continuation of lawsuit occurred. In the first instance trial proceedings, the previous documents of lawsuit by the Appellants were lawfully served to the Appellants, and the documents of lawsuit by the Appellants are also served to the Appellants. Therefore, the status of the Appellants and the status

The service of a duplicate of the petition of appeal is merely a part of the service of the documents of lawsuit while the lawsuit is pending, and thus, if the duplicate of the petition of appeal is not served, it would be different from the service of the documents of lawsuit during the proceeding of the lawsuit. If the preparatory documents are not served by the ordinary service method during the proceeding of the lawsuit, it would be sufficient to proceed with the procedure of the appellate court by serving the documents of lawsuit as in the case of preparatory documents, even where the duplicate of the petition of appeal is not served by the ordinary service

In addition, an order to dismiss a complaint and an order to dismiss a petition of appeal are identical in that “no longer proceed with a lawsuit in this state,” but the substantial meaning of both parties is significantly different. In other words, an order to dismiss a petition of appeal means “a lawsuit shall be instituted again,” but the order to dismiss a petition of appeal is a different judgment to the extent that it is impossible to prepare for it.” Therefore, the view that an order to dismiss a petition of appeal and an order to dismiss a petition of appeal are similar to an order to dismiss a petition of appeal is not considered to have the intrinsic difference of the above two trials.

3) In practice, the presiding judge of the appellate court has a tendency to judge whether to issue an order to dismiss the petition of appeal on account of the impossibility of delivering a duplicate of the petition of appeal. Unlike the order to dismiss the petition of appeal, it seems that the order to dismiss the petition of appeal is aware that it has the effect of terminating the proceedings. This practical tendency seems to show well the problems of the legal principles of the existing precedents. It is predicted that this practice is not the case where: “No matter is because it is unclear what is due, but there is any problem in the existing practice.” It seems that the Supreme Court basically excluded the order to correct address and the order to dismiss the petition of appeal on account of the impossibility of delivering a duplicate of the petition of appeal.

F. In full view of the above discussions, in cases where a duplicate of the petition of appeal is impossible to be served, the presiding judge of the appellate court shall revise all the decisions, including Supreme Court Order 68Ma1029 dated September 24, 1968; Supreme Court Order 71Ma317 dated May 12, 1971; and Order 71Ma317 Decided May 12, 197; etc. to the same purport.

The presiding judge of the court below of this case ordered the re-appellant to revise the address of the appellee for the reason that the duplicate of the petition of appeal of this case was impossible to serve a duplicate of the petition of this case. In addition, the court below's order to dismiss the petition of this case for the reason that the re-appellant did not correct the address of the appellee within the period specified in the order to revise the address

For the foregoing reasons, we express our concurrence with the Majority Opinion.

6. Opinion concurring with the Majority Opinion by Justice Min You-sook, Justice Kim Seon-soo, and Justice Noh Tae-ok

A. However, apart from the need for legislative resolution on the matter, the approach taken by the Dissenting Opinion goes beyond the natural scope of interpretation in accordance with the legal language and text. hereinafter the Dissenting Opinion’s argument cited by the Dissenting Opinion is to be inconsistent with the necessary scope.

1) According to the Dissenting Opinion, first of all, the service of a duplicate of the petition of appeal is merely a part of the service of documents of lawsuit while the lawsuit is pending, and thus, if the duplicate of the petition of appeal is not served, it shall be treated equally with the case where another document of lawsuit is impossible to

However, when a duplicate of the petition of appeal is served on the appellee, the relationship between the appellate court and the parties is established, and thereby the presiding judge of the appellate court is no longer able to issue an order to dismiss the petition of appeal (see Supreme Court Order 2019Ma559, 5600, Jan. 30, 2020). As can be seen, since the relationship between the appellate court and the parties is established and the subsequent procedures are different under the Civil Procedure Act, the entire appellate procedure is difficult to be considered as an extension of the first instance trial procedure. Therefore, the impossibility of delivering a duplicate of the petition of appeal and the other documents of lawsuit while the lawsuit is pending is not the same at the same level.

The fact that it is difficult to regard the appellate court procedure as a simple extension of the first instance trial procedure may be confirmed at several pages with regard to service. For instance, the scope of attorney's right of attorney is limited to the relevant instance, barring any special circumstance (see Supreme Court Decision 93Da52105, Mar. 8, 1994, etc.) and the effect of a report on the recipient of the service at the first instance trial does not extend to the appellate court (see Supreme Court Decision 2017Da52064, Apr. 12, 2018). Even if the appellant appointed a legal representative at the first instance court or reported the recipient of the service, the attorney's right of attorney at the first instance court shall, in principle, be extinguished, and the validity of the report, which is the receipt of the service at the first instance court, shall also be extinguished, unless there are special circumstances.

In addition, Article 185(2) of the Civil Procedure Act provides that where a party fails to report the purport of changing the place where the document was served, it may be sent by such means as stipulated by the Supreme Court Regulations at the former place where the document was served. Thus, even if the party reported it to the place where the document was served, if the document was not served on it, it cannot be seen as “the place where the document was previously served” under Article 185(2) of the Civil Procedure Act (see Supreme Court Order 2005Ma201, Aug. 2, 2005). Furthermore, even if the appellant was served the document of lawsuit at the first instance, unless the document of lawsuit was served at the appellate court, it cannot be deemed as “the place where the document was previously served” under Article 185(2) of the Civil Procedure Act (see Supreme Court Decision 201Da85796, Jan. 12, 2012).

In short, since the new appellate procedure, which is the first instance from the time when the petition of appeal was submitted, is initiated, it is natural that the service impossibility of a duplicate of the petition of appeal, which is to be served at the appellate court, should be treated differently from the service impossibility of other

2) The Dissenting Opinion argues that the appellant has a duty to take appropriate measures so that the appellee can receive a proper delivery of a duplicate of the petition of appeal, so the Appellant is liable for not being served with a duplicate of the petition of appeal.

However, the parties to a lawsuit cannot be deemed to have a duty to report general service place under the Civil Procedure Act. A lawsuit document is sent to the parties who violated the duty to report the change of service place (Article 185 of the Civil Procedure Act). Moreover, the appellant can be aware of the commencement of the appellate procedure by receiving a duplicate of the petition of appeal. Moreover, in the first instance court, the respondent cannot be deemed to have a duty to take measures, such as reporting the place of service or the recipient of the service, in advance, in preparation for

In a case where the court of first instance, as in the instant case, had a legal representative for the party to the lawsuit, failed to serve the documents of lawsuit directly to the party to the lawsuit, the court held that even if the party to the lawsuit was unable to serve the documents of lawsuit at the time of the appellate trial, it did not violate the obligation to report the change of service place under Article 185(1) of the Civil Procedure Act (see, e.g., Supreme Court Decision 2001Da30025, Sept. 7, 2001). From this point, it is difficult to view that the appellant has a general obligation to take appropriate measures so that the duplicate of the petition of appeal can be served properly.

3) The Dissenting Opinion argues that an order to dismiss a complaint and an order to dismiss a petition of appeal are essentially different from that of a case where a duplicate of a complaint is impossible to be served, it may issue an order to correct the address to the Plaintiff and dismiss the complaint when the Plaintiff failed to comply with this order. However, if the duplicate of the petition of appeal

However, there is a difference between the order to dismiss a complaint and the order to dismiss a petition of appeal because there is an important difference between the court of first instance and the appellate court as to the existence of a final judgment, which is the judgment of the court of first instance. Due to such difference, the degree of disadvantage in the lawsuit due to the dismissal

The text of Articles 255 and 254 of the Civil Procedure Act concerning a case where a duplicate of the complaint is impossible to be served, and the text of Articles 401 and 402 of the same Act concerning a case where a duplicate of the petition of appeal is impossible to be served, are the same. The above provision of the same Act concerning a case where a duplicate of the petition of appeal is impossible to be served, or where a duplicate of the petition of appeal is impossible to be served, all of the provisions of the same Act stipulate that the presiding judge shall make an order for correction and the party

However, the Plaintiff at the stage of submitting the petition of appeal is an uncertain party, but the appellant at the stage of submitting the petition of appeal is a party who has already lost by the judgment of the court of first instance. Since there is an essential difference between the Plaintiff at the stage of submitting the petition of appeal and the appellant at the stage of submitting the petition of appeal, it is natural that there is a difference in the outcome of the lawsuit due to the order to dismiss the petition of appeal and the order to dismiss the petition of appeal. If the Plaintiff seeking to commence the lawsuit fails to perform his/her duty in the lawsuit, i.e., correction of his/her address, he/she may not commence the lawsuit as desired, and if the appellant seeking to reverse the judgment of the first instance fails to perform his/her duty in the lawsuit, i.e., correction of the address of the appellee, the appellate court may not commence the proceedings as desired. Therefore, the result of the order

4) The Dissenting Opinion does not directly stipulate whether the appellant may be ordered to correct the address of the appellee in the event that a duplicate of the petition of appeal under Article 402(1) of the Civil Procedure Act is impossible to be served.

However, Article 402(1) of the Civil Procedure Act does not separately define the cause for which a duplicate of the petition of appeal is impossible to be served, so if the cause for impossibility of service is the “resident” of the appellee, the appellant should interpret the “resident” of the appellee.

5) The Dissenting Opinion argues that even though the presiding judge of the appellate court may serve a duplicate of the petition of appeal by public notice, ordering the appellant to revise the address and ordering the rejection of the petition of appeal when the appellant fails to comply with this order, is contrary

However, as a matter of principle, service by public notice may be deemed a case where the place of service of the appellee is unknown (Article 194(1) of the Civil Procedure Act). In order to determine whether the place of service of the appellee is a case where the place of service of the appellee is unknown when a duplicate of the petition of appeal is not served, it is necessary to first confirm the address of the appellee. A duplicate of the petition of appeal is served at the place of service of the appellee or the address of the appellee indicated in the record, but it cannot be readily concluded that the place of service of the appellee cannot be known unless a duplicate of the petition of appeal is served at the place of service of the appellee. In such a case, if there is no change in address due to the fact that the place of service of the appellee is unknown, it cannot be deemed that the place of service cannot be seen as a case where the place of service cannot be known before confirming the result of service of the appellant. Inasmuch as the present address of the appellee is to be the one to be served by public notice pursuant to Article 402(1) of the Civil Procedure Act.

Furthermore, the principle of proportionality or the principle of proportionality under the Constitution refers to the limits to be observed when the State limits the fundamental rights of the people pursuant to Article 37(2) of the Constitution. The Dissenting Opinion’s grounds for the principle of proportionality under the Constitution are as follows: (a) the appellate court, at the discretion of the presiding judge of the appellate court, spreads the phenomenon that the appellant only puts an excessive disadvantage in the lawsuit; and (b) In addition, in order to ensure that the principle of proportionality is observed, the means should be achieved; (c) the infringement of private interests should be minimized; and (d) the reasonableness between public interests and private interests should be recognized. The Dissenting Opinion assumes the balancing of interests between the appellant and the appellant, which is a private person; (c) it seems that the disadvantage in the lawsuit granted to the appellant is excessive compared to the respondent.

However, as seen earlier, since it cannot be readily concluded that the appellant fails to revise the address of the appellee, the circumstances where service by public notice can be conducted, and the situation where the order to dismiss the petition of appeal may be issued, is not essentially the same. Therefore, even if the presiding judge of the appellate court issued an order to dismiss the petition of appeal on the ground that when the appellant is unable to serve a duplicate of the petition of appeal, he/she did not serve by public notice, and issued an order to correct the address to the appellant and did not implement it, it cannot be deemed that one of the selected methods is arbitrary in the same situation. Therefore, we cannot agree with the Dissenting Opinion, which is in violation of the principle of proportionality under the Constitution.

6) The Dissenting Opinion argues that the electronic litigation system of civil procedure was established on the premise that the litigants should take measures to ensure their own delivery, and it is unreasonable to view that the appellant bears the responsibility to correct the address of the Appellants.

However, even if the proceedings of the first instance court were to be conducted by electronic litigation, a duplicate of the petition of appeal may arise if it becomes impossible to serve a copy of the petition of appeal. This is because in the first instance trial, only the appellant's attorney consented to the electronic litigation and served the electronic document on the appellant, and if the appellee did not consent to the electronic litigation, the duplicate of the petition of appeal cannot be served electronically on the appellee. It is because the appellant's consent to the electronic litigation is merely because the appellant bears the risk of not receiving the electronic notice because he did not properly enter his mobile phone number and e-mail address in the electronic information system.

7) The Dissenting Opinion is inconsistent with the Supreme Court’s practice concerning the service of a duplicate of the petition of appeal.

However, in a case where the Supreme Court served a duplicate of the petition of appeal even if the requirements for the delivery of documents were not satisfied, if the documents were to be served, such documents shall be deemed null and void. In a case where the delivery of a duplicate of the petition of appeal and the notice of receipt of records of appeal was illegal and invalid, the Supreme Court erred by omitting judgment on important matters affecting the judgment in the Supreme Court’s dismissal of the appeal without examining the appellant’s grounds of appeal on the grounds that the delivery of the notice of receipt of records of appeal was lawful, based on the date of the delivery, on the grounds that the service of the notice of receipt of records of appeal was not filed within the period for submission of the appellate brief, and that this constitutes grounds for retrial under Article 451(1)9 of the Civil Procedure Act (see Supreme Court Decision 2010Du127, Sept. 9, 2010). However, even if the service was not met at the time of post determination, it cannot be accepted by the Dissenting Opinion on this point.

The court of final appeal may render a judgment as a legal court without oral pleadings (Article 430(1) of the Civil Procedure Act), and the parties to a lawsuit may not submit new arguments or evidence to the court of final appeal in accordance with the legal nature of the structure of the court of final appeal. The judgment dismissing a petition of final appeal and the judgment dismissing a petition of final appeal is final and conclusive, and litigation procedures are final and conclusive. In addition, when a judgment is rendered without oral pleadings at the end of the period for filing a petition of final appeal (see, e.g., Supreme Court Decision 2013Da69866, Jul. 9, 2015). The Supreme Court’s practice is not inconsistent with the current Supreme Court’s decision, since the practice of delivering a copy of the petition of final appeal is formed by serving ex officio a copy of the petition of final appeal in line with the nature of the structure of the court of final appeal as seen earlier and the practice of serving the procedure by public notice is formed, and if the duplicate of the petition of final appeal order is not unlawful.

8) The Dissenting Opinion argues that, where a duplicate of the petition of appeal is unable to be served, if it is impossible to identify the place where the appellee was served even though the presiding judge made the best efforts, the duplicate of the petition of appeal shall be served by public notice and the appellate court shall proceed with the appellate trial. Accordingly, the appellee who had known the progress of the appellate trial by public notice may immediately dismiss the appeal. In such a case, the appellate court shall reverse the judgment of the appellate court ex officio, and thus, the interests of both parties in the

However, in cases where a duplicate of a complaint is impossible to be served and where a duplicate of the petition of appeal is impossible to be served, the same legal provision that the presiding judge shall issue an order of correction and an order of rejection respectively is identical, but if each of the orders of correction is not complied with, it shall be deemed that the presiding judge goes against the legislator’s intent to take measures that can be taken by him/her is different. In cases where a duplicate of the petition of appeal is impossible to be served as a copy of the petition of appeal as stated in the Dissenting Opinion, unlike the cases where a duplicate of the complaint is impossible to be served, the presiding judge of the appellate court cannot issue an order of correction and

If the system is operated as shown in the Dissenting Opinion, the judicial resources are wasteed and additional expenses are incurred in the course of the proceedings such as the ex officio service of a duplicate of the petition of appeal, the confirmation of the appellate judgment, the completion of the proceedings, the reversal and the return of the appeal, and so there are side effects that fall under the efficiency and economic feasibility of the proceedings. If the appellate court judgment becomes an executive title for the appellant, there are many cases where the appellant is required to deposit cash in order to suspend compulsory execution based on the appellate court judgment in practice when the appellant has made a subsequent completion of the proceedings, and there is cost of interest burden, etc. in the process. If another interested party takes any measure on the premise that the appellate judgment becomes final and conclusive, the legal stability is also harmed if the appellate court judgment can be reversed

It is also desirable to induce the appellate court to serve a duplicate of the petition of appeal on the basis of the correction of address, which is the minimum effort of the appellant, in terms of the efficiency and economic feasibility of the proceedings.If it is impossible to serve a duplicate of the petition of appeal even though the correction of address was taken, it should be served by service of public notice. However, if it is not possible to serve a duplicate of the petition of appeal, it should be served on the appellant by means of service. In this case, even in this case, the re-appellant is required to submit only a copy of the petition of appeal issued by the appellant upon receipt of the order to correct address and submit it to the appellate court, or at least when he files an application for inquiry about the address of the appellee at least, the duplicate of the petition of appeal of this case did not interfere with serving the appellee

B. We need to consider the scheme for institutional reform in the civil procedure procedure, which is based on the principle of partyism and pleading.

1) Under Article 402 of the Civil Procedure Act, it is evident that the appellant has a minimum obligation to take measures necessary to serve a duplicate of the petition of appeal. Service of a duplicate of the petition of appeal against the appellee is a minimum condition for the proceeding of the appellate trial. If no duplicate of the petition of appeal is served because the place of lawful service cannot be known, it is necessary to confirm the address, etc. (in the case of a corporation, the address, location of the representative, etc. on the certificate of corporate registration) of the appellee as of the date of the appeal. In such a case, the Civil Procedure Act provides a system for the appellant to verify the address of the appellee and to impose sanctions against rejection of the petition of appeal against the appellant in order to ensure the effectiveness of imposing such obligation. In short, it cannot be deemed that the presiding judge ordering the appellant to correct the address of the appellee to the appellate court is compulsory to prevent the appellant from working on the date on which the order to correct the address of the appellant was rejected, and thus, the purport of the appellate court’s order to refuse to serve a duplicate of the petition of appeal is 20.

2) In a litigation system, the risk of causing disadvantages in the litigation due to the lack of capacity of the parties to the lawsuit to perform the litigation in a timely manner is likely to be incurred due to the lack of capacity of the parties to the lawsuit. If the appellant is ordered to correct the address due to the impossibility of delivering the duplicate of the petition of appeal, but does not timely take necessary measures for the correction of address due to the lack of capacity to perform the lawsuit, he/she may lose the opportunity to undergo a trial at the appellate court by receiving an order of rejection of the petition of appeal. It may be necessary to respond to the side effects arising from the lack of capacity of the parties to the lawsuit. The Dissenting Opinion appears to have attempted to de facto revise

3) However, with a view to preventing the party to a lawsuit from incurring any disadvantage due to the lack of capacity to perform the litigation, the court may not have any question about whether it is appropriate to intervene in guardianship for the benefit of one of the party to the lawsuit through the interpretation theory. It is not possible to relieve all anticipated disadvantages that the party to the lawsuit may sustain due to the lack of capacity to perform the litigation through the interpretation theory. It seems clear that strengthening the guardianship role of the party to the lawsuit through the unreasonable interpretation theory beyond the basic ideology of the current civil procedure is not desirable from the perspective of institutional improvement.

It is not a court but a party to a lawsuit. A civil lawsuit is initiated according to the intention of the party to the lawsuit, and is deliberated by the data submitted by the party to the lawsuit, and is conducted by the involvement of the party to the lawsuit. In the event that a duplicate of the petition of appeal is impossible to be served, it takes into account the principle that imposing an appellant on the appellant the obligation to confirm the present address of the appellee because the place of service of the appellee cannot be known any more, and the civil procedure should be initiated. The preparation of the sanctions against the order to dismiss the petition of appeal in order to secure the effectiveness of imposing the above obligation on the appellant in the above lawsuit can be seen as a legislative decision for the fair treatment of both parties as the result of lowering the interests of both parties in the lawsuit.

Because of the lack of litigation capacity of the parties to a lawsuit, the problem that is disadvantaged in the lawsuit is the right response to the improvement of the system to faithfully support and supplement the litigation capacity of the parties to the lawsuit by expanding the legal structure substantially so that the legal aid system can be assisted by the attorney-at-law who is a legal expert and introducing the attorney-at-law forced to a certain extent. This direction conforms to the civil procedure procedure that provides for the principle of partyism and the principle of pleading. In addition, the lower court's appeal rate should be lowered by improving the system in the direction

As above, I express my concurrence with the Majority Opinion.

Chief Justice Kim Jong-soo (Presiding Justice)