In a case where an application for salvage was filed without attaching stamps to the petition of appeal, but the decision to dismiss the application for salvage becomes final and conclusive, and thereafter the application for salvage was filed again in the next lawsuit, whether the petition of appeal may be dismissed on the ground that the existence, etc. was not corrected regardless of whether the decision to dismiss the application for new salvage became final and conclusive

Articles 128, 399, and 402 of the Civil Procedure Act

Supreme Court Order 2008Ma547 Decided July 1, 2008

Re-appellant

Seoul Northern District Court Order 2016Na7010 dated November 7, 2017

The reappeal is dismissed.

The grounds of reappeal are examined.

The Re-Appellant asserts that the order of the court below which rejected the counterclaim before the decision of dismissal on the application for lawsuit aid becomes final and conclusive is erroneous by misapprehending the legal principles on the validity of the application for lawsuit aid or the right of the presiding judge to examine the complaint, and infringing the constitutional right

In case where the appellant has filed an application for the salvage in the lawsuit without attaching a prescribed stamp when filing a petition of appeal, the petition of appeal shall not be dismissed on the ground that the stamp of the petition of appeal is not attached before the decision on the application for the salvage becomes final and conclusive, or on the ground that the order for dismissal of the application for the salvage in the lawsuit has not been revised on the ground that the order for dismissal of the application for the salvage in the lawsuit became final and conclusive, and that the petition of appeal was rejected on the ground that it was not revised. Even if the first application for the salvage in the lawsuit was filed after the decision on dismissal of the application for the salvage in the lawsuit became final and conclusive, unless it is known that the application for the salvage in the lawsuit has been accepted on the ground of the grounds of its rejection, the petition of appeal may be dismissed (see Supreme Court Order 2008Ma547, July

According to the records, the re-appellant appealedd by a judgment against the defendant in the Seoul Northern District Court case 2015Gaso357612, and filed a counterclaim on November 25, 2016 at the appellate court, and filed an application for lawsuit aid with the Seoul Northern District Court 2016Kao354, Nov. 29, 2016; however, the Supreme Court dismissed the reappeal on June 9, 2017 by ruling 2017Ma5191, which became final and conclusive; thereafter, the appellate court ordered the re-appellant to correct whether the counterclaim was a counterclaim within seven days after the order was served by a junior administrative officer on September 6, 2017; the re-appellant did not file an application for correction on September 25, 2017; the appellate court ordered the aforementioned order to dismiss the re-appeal on October 27, 2017, which was determined by the presiding judge of the Seoul Northern District Court 207Da16717, Oct. 16, 2017.

Examining these facts in light of the legal principles as seen earlier, the order of the court below that rejected the above counterclaim on the ground that the re-appellant did not attach stamps while submitting the counterclaim and applied for a litigation aid, once the ruling dismissing the application for rescue became final and conclusive, and did not correct the order. In so doing, the court below did not err by misapprehending the legal principles as

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

Justices Lee Ki-taik (Presiding Justice)