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(영문) 서울고등법원 2019.06.04 2018나8738

대여금 등

Text

1. The judgment of the court of first instance is modified as follows.

The Defendants are jointly and severally liable to the Plaintiff for 212,300,000 won.

Reasons

1. Determination on the legitimacy of a subsequent appeal

A. The Defendants asserted that the lawsuit in this case was pending, but the copy of the complaint and the original copy of the judgment were not served by means of service by public notice, despite being aware of the fact that the lawsuit in this case was pending, and thus, the Defendants’ appeal for subsequent completion is unlawful.

B. If a copy, original copy, etc. of a copy of a panel was served by service by public notice, barring any special circumstance, the parties were unaware of the service of the judgment without negligence, and in such a case, the defendant is unable to comply with the peremptory period due to a cause not attributable to him/her and thus, he/she is entitled to file an appeal for subsequent appeal within two weeks from the date such cause ceases

(Article 173 and 396 of the Civil Procedure Act. Here, the term “the date on which the cause ceases to exist” refers to the time when a party or legal representative becomes aware of the fact that the judgment was served by means of service by public notice, rather than the fact that the party or legal representative was not aware of the fact that the judgment was served by public notice. Barring any special circumstances, it shall be deemed that the party or legal representative becomes aware of the fact that the judgment was served by public notice only when the party or legal representative

(2) On February 24, 2006, the court of first instance rendered a judgment accepting the Plaintiff’s claim on February 20, 2008 and served the Defendants on February 21, 2008 by means of service by public notice, and the original copy of the judgment was also served on the Defendants on February 21, 2008. Based on the judgment of first instance, the Plaintiff filed a payment order against the Defendants on February 5, 2018 with the Suwon District Court Decision 2018 tea216, the Defendant filed a payment order with the Defendants on February 7, 2018, and the same month with the Defendant B.

8. The fact that the original of the above payment order has been served respectively;