[제권판결취소청구사건][하집1987(4),206]
Whether the reason why a person who received a request for discount of a bill has escaped without delivering the discount money to the client is whether it is a ground for acceptance of the public summons procedure (negative)
The application for a public summons on the ground of the fact that a person requested to discount a bill does not deliver the discount money to the client, constitutes “where the procedure for the public summons is not permitted under the law” as prescribed in Article 461(2)1 of the Civil Procedure Act.
Article 461(2)1 of the Civil Procedure Act
Supreme Court Decision 73Da1030 Delivered on April 9, 1974 (Article 401(3)823 of the Civil Procedure Act)
Korea Mutual Savings Bank
Sychosia
Jeonju District Court of First Instance (86Gadan696 delivered on July 1, 200)
1. Revocation of the original judgment;
2. On August 12, 1986, the judgment of nullification rendered by a member of the District Court in the Jeonju District Court with respect to a public summons application case No. 86Ka1277 is revoked.
3. The above request for public summons is dismissed.
4. The costs of the lawsuit shall be borne by the defendant in both the first and second instances.
(Preliminary: was added at the trial).
The defendant shall pay to the plaintiff the amount of 4,520,000 won with 25% interest per annum from August 12, 1987 to the date of full payment.
Litigation costs shall be borne by the defendant.
The fact that the member of the Jeonju District Court rendered a judgment of nullification on August 12, 1986 with respect to a promissory note entered in the attached list as of August 12, 1986 with respect to the case of application for a public summons by 86Ka127
If Gap evidence Nos. 1-2 (Application for Public Summons) and testimony of the highest witness at the trial without dispute on the formation, the defendant requested discount of the bill of this case to the non-party on January 30, 1986, and the non-party can find the fact that the non-party had applied for the public summons on the ground that he had escaped without delivering the discounted amount of the bill to the defendant, and there is no evidence contrary to this, it constitutes "where the procedure for public summons is not permitted under the law" under Article 461 (2) 1 of the Civil Procedure Act (see Supreme Court Decision 73Da1630, Apr. 9, 1974; Supreme Court Decision 4293Da477, Jul. 13, 1961). Thus, the plaintiff's claim for cancellation of the above nullification judgment on the ground of the above ground is justified, and this conclusion is unfair, and the non-party is dismissed as the plaintiff's appeal and the judgment against the non-party is dismissed.
[Attachment Omission]
Judges Choi Jong-young (Presiding Judge)