Source of the Case: Precedent No. 12 – Case No. 14/2017/KDTM-GDT

Overview:

After postponing the first session which was not due to the fault of the involved parties, for the second time duly summoned by the Court, if any of the involved parties are absent, the trial panel shall postpone the Court session again and determine that the “involved party are absent the first time they are duly summoned”.

Material Facts:

On February 26, 2014, at the resumption of the Court session after postponing the first session, Q Joint Stock Company (“Q Company”) v. T Co., Ltd., (“T Company”), a commercial dispute was decided by the Supreme People’s Court of Appeals (“Court of Appeals”) which suspended the appellate trial due to the absence of the appellant, T Company. Thereafter, T Company filed a complaint for cassation against this decision and the Supreme People’s Court of Cassation (“Court of Cassation”) found for T Company on June 6, 2017.

Judicial Reasoning and Legal Application:

The Court of Cassation found in favor of T Company holding that the postponement on the first session has been decided by the Court of Appeals itself for its purpose in which the faults not in the involved parties. As acknowledged by the Court of Cassation, the claimant, as well as plaintiff, was successful at the first session and this fact was also recognized by the Court of Appeals. However, there were errors of the Court of Appeals in applying Article 266.2 of the Civil Procedure Code 2004, that “the appellant was absent twice” is the sine qua non for the suspension accordingly:

“If the appellants are absent for the first time for plausible reasons, the court sessions must be postponed. If the appellants who have been duly summoned twice but are still absent, they shall be considered having waived their appeals and the courts shall issue decisions to stop the appellate trial of the cases, appealed by the absent appellants”

For the correct determination, “the Court of Appeals should just postpone the second session due to the first time absence of appellant for plausible reasons instead of suspending, even when the case was brought through 2 stages”, the Court of Cassation decided.

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