In a case where a petition of immediate appeal was submitted to the purport that an objection is filed against the disposition of a judicial assistant, and the judicial assistant immediately sent the records of the case to the appellate court without undergoing the procedure prescribed by the former Rules of the Judicial Assistant Officials, the case holding that the appellate court should have transferred the records of the case to the first instance court to go through a legitimate procedure.

Article 54(3) of the Court Organization Act, Article 4(1) (see current Article 4(1)), (5) (see current Article 4(5)), Article 4(6)5 (see current Article 4(6)5), and (9) (see current Article 4(9)) of the former Rules on Judicial Assistants (Amended by Supreme Court Regulation No. 2187, Jul. 7, 2008);

Re-appellant

Other Party

Korea

Chuncheon District Court Order 2008Ra16 dated June 10, 2008

The order of the court below shall be reversed. The case shall be transferred to Chuncheon District Court.

The grounds for reappeal are examined ex officio prior to judgment.

Article 54(3) of the Court Organization Act provides that a judge may file an objection against the disposition of a judicial assistant in accordance with the Supreme Court Regulations, and Article 4 of the former Rules on Judicial Assistants (amended by Supreme Court Regulation No. 2187, Jul. 7, 2008) provides that a judge may file an objection against the disposition subject to an appeal, immediate appeal, or special appeal when he/she handles the case among the dispositions taken by a judicial assistant officers (paragraph (1)). Where a judicial assistant officer receives an objection, he/she shall send the case of objection without delay to the judge of the court to which he/she belongs (Paragraph (5). The judge in receipt of the objection shall send the case of objection after authorizing the disposition of the judicial assistant officer, and send the case of objection to the appellate court (Paragraph (6)5), and the appellate court in receipt of the objection case shall consider the case as an appeal or immediate appeal against the authorized disposition taken by the judge and proceed with the trial procedure (Paragraph (9)).

However, according to the records, when the re-appellant submitted an immediate appeal to the purport that he raised an objection against the disposition of the instant judicial assistant officer, the judicial assistant officer immediately sent the records of the instant case to the court below, which is the appellate court, without following the procedure prescribed in Article 4(5) and (6) of the former Rules of the Judicial Assistant Officers, such as the authorization disposition by the judge of the competent court.

Thus, the court below should have transferred the records of this case to the court of first instance again and should have gone through legitimate procedures, but the court below concluded that the first instance court's decision was lawfully made, and dismissed the appeal by the re-appellant. This order of the court below is erroneous in the misapprehension of laws and regulations regarding the procedure for raising objection against the disposition of the judicial assistant. Therefore, the court below's order cannot be maintained.

Therefore, the order of the court below shall be reversed, and as such, it is sufficient to directly judge the case, it shall be transferred to the first instance court for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Hyun-chul (Presiding Justice)