Hanyang Co., Ltd. and two others (Attorneys Kim Sung-sung et al., Counsel for the plaintiff-appellant)

Daegu District Court Order 2004Gahap1894 dated June 30, 2005

The order of the first instance shall be revoked.

The same shall apply to the order.

1. Basic facts

According to the records, the following facts are recognized:

A. Thai Construction Co., Ltd., Green Industry Development Co., Ltd., Hanyang-si Co., Ltd. filed a lawsuit against Pohang-si to confirm the status of successful bidder at the first instance court No. 2004Gahap1894, and Han-gu Co., Ltd., the appellant, participated in the lawsuit for the purpose of Defendant Pohang-si.

B. On June 10, 2005, the court of the first instance rendered a favorable judgment against the Plaintiffs, and the original copy of the said judgment was sent to the Defendant’s Intervenor on June 13, 2005, to the Plaintiff’s agent on June 14, 2005, and to the Defendant on June 16, 2005, respectively.

C. On June 13, 2005, Hanyang Co., Ltd., the appellant against the above judgment, filed an appeal in the capacity of the defendant’s assistant intervenor. At around 13:00 on June 24, 2005, the defendant submitted to the court of first instance a written waiver of appeal as to the above case, and also submitted the written withdrawal of appeal filed by the defendant’s assistant intervenor.

D. On June 24, 2005, the appellant filed an appeal against the above judgment at the same time upon filing an application for intervention of the independent party in the above lawsuit. The presiding judge of the court of first instance may file an application for intervention of the independent party after the pronouncement of the judgment of the court of first instance only before the final judgment of the court of first instance becomes final and conclusive. Thus, the above petition of appeal is clearly submitted after the period during which the appeal can be lodged. Accordingly, the above petition of appeal was ordered to dismiss the above petition of appeal on June 30, 2005.

2. Summary of grounds for appeal;

A. The presiding judge of the first instance court's right to examine a petition of appeal held by the presiding judge under Article 399 (1) of the Civil Procedure Act is limited to an incidental petition of appeal and a petition of appeal with an exception to the period of appeal. Thus, in a case where a family appeal is not an incidental form or with an excessive period of appeal, the presiding judge of the first instance court cannot dismiss the petition of appeal even if the family appeal is filed after the waiver of the right to appeal, and it is unlawful, and the waiver of the right to appeal is a matter to be decided by the appellate court. However, the petition of appeal of this case by the appellant of the first instance court is unlawful since it is against the scope of the presiding judge's right to review the petition of appeal since it was submitted on June 17, 2005 and June 24, 2005, each of two weeks from June 16, 2005, which were delivered to the Plaintiff by the original judgment, and it is obvious that it was submitted within the period of appeal, which was dismissed by the presiding judge of the first instance.

B. On June 13, 2005, the appellant Hanyang, the defendant assistant intervenor, had been pending in the appellate court in this case, and even if the records of trial are in the court of first instance, the defendant's waiver of appeal will take effect to the court of appellate court where the lawsuit is pending. Therefore, even though the appellant's independent party intervention and appeal are lawful appeal filed before the judgment of first instance becomes final and conclusive, it is unlawful for the presiding judge of the first instance court to dismiss the petition of appeal of this case.

3. Determination

A. Article 39(1) of the Civil Procedure Act provides that “In case where a petition of appeal is contrary to the provisions of Article 397(2) of the Civil Procedure Act, and where a stamp under the provisions of Acts is not attached to the petition of appeal, the presiding judge of the original instance shall order the appellant to revise the defects within a reasonable period fixed.” Article 399(2) of the same Act provides that “If the appellant fails to revise the defects within the period under paragraph (1) and if it is obvious that the period of appeal has elapsed, the presiding judge of the original instance shall dismiss the petition of appeal by his order.”

B. The purport of the Civil Procedure Act that grants the presiding judge of the first instance court and the appellate court the right to examine the petition of appeal is to promote the economy of the lawsuit by terminating the lawsuit before the continuation of the lawsuit in the appellate court by means of dismissing the petition of appeal in the form of a simple presiding judge's order, rather than a judgment where it is evident that an appeal has been filed with the lapse of the time limit for appeal, and where it is not clear that the appeal has been filed, the defects in the petition of appeal as grounds for rejection should be strictly interpreted in light of the purport of the above system, and therefore, "where it is obvious that the time limit for appeal has lapsed" under Article 399 (2) of the Civil Procedure Act means only the case where it is obvious that the time limit for appeal under Article 396 of the same Act has lapsed, or it does not include cases where the right to appeal has been extinguished for any reason other than the time limit for appeal.

C. With respect to the instant case, a person entitled to file an application for intervention by an independent party may file an appeal at the same time (see Articles 79(2) and 72(3) of the Civil Procedure Act), and there is no other provision regarding the period of appeal, and therefore the previous parties to the relevant lawsuit shall be bound to be the basis of the previous parties to the relevant lawsuit. However, as seen earlier, the filing of an application for intervention by the appellant and a petition of appeal against the defendant and the supplementary intervenor within two weeks from the date of delivery of the authentic copy of each judgment against the plaintiff and the defendant and the supplementary intervenor. Thus, even if the petition of appeal by the appellant was filed after the submission of the Defendant’s written waiver of appeal, it cannot be deemed to constitute “when it is obvious that the period of appeal has elapsed” under Article

D. Nevertheless, since it is evident that the petition of appeal of this case was submitted after the expiration of the period allowed to file an appeal, the order of the first instance court which dismissed the petition of appeal by the appellant is unlawful, the assertion of the appellant to the same purport is with merit.

4. Conclusion

Thus, the appellant's appeal of this case is with merit, so it is decided as per Disposition by the court of first instance to revoke the order.

Judges Park Hong-woo (Presiding Judge)