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서울중앙지방법원 2016.11.04 2016나24009

약정금

Text

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

Purport of claim and appeal

1...

Reasons

1. Determination on the legitimacy of a subsequent appeal

(a) The following facts in basic factual relations are clear of records:

1) On February 27, 2015, the Plaintiff submitted a complaint to the court of first instance against the Defendant and the co-defendant C of the first instance trial, and the Defendant received the complaint on April 14, 2015, and submitted a written answer to the court of first instance on May 20, 2015. 2) Thereafter, the court of first instance notified the Defendant of the first date for pleading on August 4, 2015, but was not served on the Defendant due to the absence of a closed door. The court of first instance extended the date for pleading, but again served the notification of the date for pleading on December 8, 2015, and the date for pronouncement on January 6, 2016, by sending it to the Defendant’s domicile.

3) On January 28, 2016, the court of first instance rendered a judgment accepting part of the Plaintiff’s claim against the Defendant. On February 2, 2016, the original copy of the judgment was served by public notice on February 12, 2016, and the service became effective at the time of February 27, 2016. (4) The Defendant submitted a written appeal for subsequent completion to the court of first instance on April 7, 2016.

B. Article 173(1) of the Civil Procedure Act provides, “Any reason for which a party cannot be held liable” refers to a reason for failure to comply with the period despite the party’s exercise of general duty to act in the course of litigation. In a case where the documents of lawsuit cannot be served in a usual way during the course of litigation and served by public notice, the documents of lawsuit cannot be served by public notice. As such, if the party fails to investigate the progress of the lawsuit and fails to abide by the peremptory period, it cannot be said that the party is due to any reason for which it is not attributable to the party, and such obligation is present at the date of pleading.