[항소장각하][공2001.12.15.(144),2516]
[1] Whether a supplementary service is legitimate only when it is made at the “place of service” under Article 170(1) of the Civil Procedure Act (affirmative)
[2] The case holding that delivery of a document to a person living together at a post office counter is an unlawful supplementary service
[1] In principle, the service should be made at the "place of service" of the person to receive the service under Article 170 (1) of the Civil Procedure Act. If the person to receive the service is not present at the "place of service", the service may be made by means of a supplementary service to deliver the document to his office staff, employee, or the person living together with the mental capacity to change the interest. However, such supplementary service is allowed only when it is made at the "place of service" as provided by the above provision. If the office staff, employee, or living together with the person refuses to receive the service at a place other than the place of service, even if the office staff, etc. refuses to receive the service, etc., it is unlawful by means of supplementary service.
[2] The case holding that delivery of a document to a person living together at a post office counter is an improper supplementary service
[1] Articles 170(1) and 172(1) of the Civil Procedure Act / [2] Articles 170(1) and 172(1) of the Civil Procedure Act
[1] [2] Supreme Court Decision 83Meu1864 delivered on May 28, 1985 (Gong1985, 892), Supreme Court Decision 92Da43098 delivered on January 12, 1993 (Gong1993Sang, 693), Supreme Court Decision 96Do2814 delivered on June 10, 1997 (Gong197Ha, 2080)
Appellant (Law Firm Song-dong, Attorney Lee Byung-dae et al., Counsel for the plaintiff-appellant-appellant)
Seoul District Court Order 200Na21313 dated August 29, 2000
The order of the presiding judge of the court below shall be revoked.
According to the records, the re-appellant filed a lawsuit against the non-appellant 1 in Seoul District Court 98Da303684, but appealed on February 9, 200 (the same court 2000Na21313). When the service of the petition of appeal against the non-appellant 1 was impossible, the presiding judge of the court below ordered the re-appellant 1 to correct the address within 5 days from the date of delivery of the order of correction to the re-appellant on April 27, 2000, and on August 29, 2000, the re-appellant dismissed the petition of appeal of this case on the ground that the re-appellant was not able to correct the address within that period even though he was served with the order of correction of address.
However, in principle, service should be made at the "place of service" of a person to receive service under Article 170 (1) of the Civil Procedure Act. If a person to receive service is not present at the "place of service, such service may be made by means of a supplementary service by delivering documents to his/her office worker, employee, or a person living together, who has intelligence to change his/her interest. However, such supplementary service is allowed only when it is made at the "place of service" as provided in the above provision, and even if the office worker, employee, or living together, etc. does not refuse to receive service at a place other than the place of service, the delivery of documents to his/her office worker, etc. at that place shall be deemed unlawful by means of supplementary service.
However, according to the mail delivery report which is bound to the records of this case (175 pages), the copy of the order to correct address of the re-appellant was delivered to the non-appellant and the non-appellant 2, who is his living together. This is not made at the service place of the re-appellant's address, dwelling place, place of business, office, etc., but at the post office counter, it can be known that the service place of the re-appellant's address (location omitted) was made at the post office counter. Thus, this is illegal supplementary delivery. Since there is no data to deem that the above order to correct address was notified to the re-appellant by other reasonable means, on the premise that the above order to correct address was legally notified to the re-appellant, the order of the presiding judge of the court below who dismissed the petition of appeal on the ground that the re-appellant did not correct within the period stipulated by the order.
Therefore, it is so decided as per Disposition by the assent of all participating Justices on the bench that the order to dismiss the petition of appeal by the presiding judge.
Justices Son Ji-yol (Presiding Justice)