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(영문) 서울중앙지방법원 2019.01.17 2018나36754

구상금 청구의 소

Text

1. Revocation of the first instance judgment.

2. The plaintiff's claim is dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

Reasons

1. Determination on the legitimacy of a subsequent appeal

A. The plaintiff's assertion that the defendant, despite being aware of the continuation of the lawsuit in this case, was served with the copy of the complaint and the original copy of the judgment by service by public notice. Thus, the defendant's appeal for subsequent completion is unlawful.

B. Article 173(1) of the Civil Procedure Act provides that “If a party is unable to comply with the peremptory period due to any cause not attributable to him/her, he/she may supplement the litigation by neglecting his/her duty of care within two weeks from the date on which such cause ceases to exist.” In this context, the term “reasons for which the party cannot be held liable” refers to the grounds for failure to comply with the period, even though the party performed his/her duty of care to conduct the litigation,

However, in a case where the original copy of the judgment was served to the defendant by public notice, barring any special circumstance, the defendant shall be deemed to have failed to know the service of the judgment without negligence. If the defendant was not aware of the continuation of the lawsuit from the beginning and became aware of such fact only after the original copy of the judgment was served to the defendant by public notice, barring any special circumstance, it shall be deemed that the defendant’s failure to observe the peremptory term of appeal due to any cause not attributable to the defendant.

(See Supreme Court Decision 2005Da27195 Decided November 10, 2005, etc.). According to the records of this case, the first instance court rendered a judgment that served a notice of a copy of the complaint and the date of pleading against the defendant by service by public notice and accepted the plaintiff's claim on January 26, 2018, and then served the original copy of the judgment to the defendant on January 30, 2018 by service by public notice. The defendant was issued the original copy of the first instance judgment on May 8, 2018 and became aware of the fact that the first instance judgment was pronounced.