The existence of grounds for retrial in a case where an appeal was dismissed due to the failure to submit the appellate brief within the submission period because it was impossible to receive the notification of the receipt of the trial record due to an error of delivery by the post office clerk (affirmative

In a case where the Plaintiff (Appellant) was dismissed under Article 399 of the Civil Procedure Act and Article 5 of the Act on Special Cases Concerning the Procedure for Appeal on the Grounds that the Plaintiff did not submit a written appellate brief within the submission period because the Plaintiff (Appellant) did not have received a written notification of the receipt of the notification of the trial records, the Plaintiff did not have been given an opportunity to lawfully participate in the lawsuit. As such, it is reasonable to view that the Plaintiff constitutes grounds for retrial based on “the right of legal representation, the right of attorney, or the right of attorney necessary for litigation” under Article 422(1)3

Articles 399 and 422(1)3 of the Civil Procedure Act, Article 5 of the Act on Special Cases concerning the Procedure for Final Appeal

Supreme Court Decision 95Da328 delivered on July 30, 1996 (Gong1997Ha, 2934 delivered on August 29, 199) Supreme Court Decision 97Da452 delivered on December 11, 1998

Plaintiff (Reexamination Plaintiff)

Defendant (Re-Defendant)

Supreme Court Decision 97Da42649 Delivered on November 13, 1997

The request for retrial shall be dismissed. Litigation costs for retrial shall be borne by the plaintiff (Plaintiff).

1. We examine the grounds for retrial.

According to the records, the non-party 1, who is the party branch of Jeju post office, delivered the notification of the receipt of the trial record sent to the plaintiff-Appellant (hereinafter only the plaintiff-Appellant), to the non-party 2, who is not authorized to receive the notification. This court dismissed the plaintiff's appeal in accordance with Article 399 of the Civil Procedure Act and Article 5 of the Act on Special Cases concerning the Procedure for Appeal of Supreme Court, on the ground that the plaintiff did not submit the appellate brief within the submission period for the judgment, on the ground that the plaintiff did not have the right to lawfully participate in the lawsuit, and it is reasonable to deem that the plaintiff falls under the grounds for retrial, based on "the right of legal representation, the right of attorney, or the right of attorney necessary to perform the procedural acts" (see Supreme Court Decision 95Nu91 delivered on August 29, 197).

2. We examine the grounds of appeal.

Examining the relevant evidence in light of the records, the court below acknowledged the fact that the plaintiff promised to pay the amount of the promissory note directly to the non-party 3 who is the holder of the promissory note of this case as the endorser, and paid it. It is just to reject the plaintiff's claim of this case on the premise that the plaintiff paid the amount to the non-party 3 on behalf of the defendant (the re-appellant), and it is not erroneous in the misapprehension of the facts against the rules of evidence,

3. Conclusion

Therefore, the decision subject to a retrial is justified in the conclusion that the appeal is dismissed, and it is so decided as per Disposition by the assent of all participating Justices on the bench that the lawsuit for a retrial of this case shall be assessed against the plaintiff who has lost.

Justices Cho Chang-hun (Presiding Justice)