항소인이 항소장의 인지를 유효하게 보정할 수 있는 기한

The subject case (Supreme Court en banc Order 2021Ma6542 dated July 24, 2025) deals with the question of the period within which an appellant’s correction of revenue stamp deficiencies on an appellate brief is considered valid. According to Article 399(1) and (2) of the Civil Procedure Act, where a stamp under the provisions of statutes is not attached to a petition of appeal, the presiding judge of the original instance shall fix a reasonable period and order the appellant to correct the defects within such period. When the appellant fails to amend the defects within the prescribed period, the presiding judge of the original instance shall reject the petition of appeal by his or her order. The judicial practice has recognized the validity of a stamp deficiency amendment by an appellant made after the correction period has expired to some extent based on numerous precedents, including Supreme Court Orders 69Ma703 dated December 8, 1969, 71Ma964 dated November 29, 1971, and 2013Ma670 dated July 31, 2013, which held that “Provided that an order of dismissal is already established, a correction of stamp deficiencies made prior to the notification of the authentic copy of the order to the addressee does not render the said order of dismissal either unlawful or voidable by the court’s reconsideration.” In these precedents, the court determined the validity of a stamp correction based on the “establishment” of an order to dismiss an appellate brief. However, there was also a ruling from the Supreme Court, holding that “Where the payment of a revenue stamp fee, etc. is made prior to the service of an order to dismiss an appellate brief, the original court must withdraw the order by affirming the existence of justifiable grounds for an immediate appeal” (Supreme Court Order 2018Ma5882 dated Nov. 16, 2018), which led to an inconsistency and friction among precedents. Furthermore, provided that the period within which an appellant’s correction of stamp defects is considered valid is determined based on the establishment or taking effect of an order to dismiss an appellate brief, whether the temporal precedence between the establishment or taking effect of an order to dismiss and the amendment should be measured in days or hours was at dispute. If the formation or taking effect of an order to dismiss an appellate brief and the amendment of stamp deficiencies occur on the same date, and the priority of the two is measured in days, it cannot be said that the amendment came after the establishment or taking effect of an order to dismiss an appellate brief, and, accordingly, the validity of the amendment cannot be recognized; however, if a unit of time for such determination is in hours, the time at which an order to dismiss an appellate brief was established or took effect and the time at which a stamp deficiency was amended should be examined in detail. Concerning the matter of a unit of time for the determination of the temporal precedence of the dismissal order and the amendment, the subject case held that “an appellant’s amendment of a stamp defect, which comes after the establishment of an order to dismiss an appellate brief on the grounds of the appellant’s noncompliance with the order, is not voided, unless special circumstances exist,” accepting “hours” as the standard for determining the time of the establishment of an order to dismiss an appellate brief. The subject case held that this conclusion was in alignment with the statutory text and legislative intent of Article 399 of the Civil Procedure Act, citing that a ruling or order, once established, has binding force that the court cannot withdraw or change unless special circumstances exist, and that the correction of a stamp deficiency constitutes a minimal requirement that an appellant needs to satisfy for an appellate trial to proceed. A few Dissenting Opinions were proposed regarding the cure of a stamp deficiency in an appellate brief. Dissenting Opinion 1 argued that the appellant should be permitted to rectify the stamp deficiency until the appellate court’s ruling on an immediate appeal against the dismissal order is rendered. Dissenting Opinion 2 argued that the appellant may amend a stamp deficiency until the day on which the order to dismiss an appellate brief is served to the appellant and takes legal effect. Dissenting Opinion 3 argued that the appellant’s amendment of a stamp defect is deemed valid only when effected before the date of the formation of the order to dismiss an appellate brief. The subject case reaffirmed the mainstream stance taken by preceding decisions of the Supreme Court, which viewed the period within which an appellate can make valid amendment of a stamp deficiency on an appellate brief as the point in time at which an order to dismiss an appellate brief was established, and overruled prior decisions that determined otherwise. The subject case substantively guarantees an appellant’s constitutional right to request a trial by granting an opportunity to make an amendment of stamp deficiencies, even after the expiration of a correction period, until the formation of an order to dismiss an appellate brief, but, at the same time, weighed more heavily the interest of an appellee who would wish to be promptly relieved from legal proceedings where the appellant failed to amend stamp deficiencies until the establishment of an order to dismiss an appellate brief, thereby ensuring complete resolution of a legal dispute in early stages. Furthermore, considering that judges prepare written judgment, protocols, etc. in an electronic format and apply judicial digital signatures thereon following the implementation of the Act on the Use of Electronic Documents in Civil Litigations, the subject case holds significance as the first ruling to hold that the time at which a ruling or order prepared in an electronic format following the introduction of electronic litigation is the time at which a judge applied a judicial digital signature.