[항소장각하결정][공1991.5.1.(895),1152]
The case holding that an order to dismiss a petition of appeal is unlawful on the ground that the failure to serve on the appellant due to the failure to rectify his/her address is unlawful.
According to the mail delivery report, the respondent Gap was unable to serve the appeal after stating "the address is unknown", and the respondent Eul was stated as "the absence of the recipient" due to non-delivery. Since Article 172 of the Civil Procedure Act provides for the supplementary service and the service of custody, it is erroneous for the court below to order the appellant Eul to correct the address of the respondent Eul solely on the ground that the address of the person to be served was not served at the time of the first delivery even though the address of the person to be served was just, and it was not served at the time of the first delivery. In addition, if other addresses appear in the record, it is necessary to summon the address to the address and order the correction of the address if the address was not served at the time of the second delivery, notwithstanding the fact that the address specified in the petition of appeal was not known and thus, the court below's order dismissing the petition of appeal was unlawful.
Article 371 of the Civil Procedure Act
Supreme Court Order 73Ma785 Dated December 27, 1973
Park Jong-un et al., Counsel for the plaintiff-appellant
Seoul High Court Order 90Na36470 Dated November 12, 1990
The original order is reversed and the case is remanded to the Seoul High Court.
ex officio, we examine the legitimacy of the original order.
According to the records, the address of the plaintiffs (appellant; hereinafter the appellant) in the complaint of this case or in the judgment of the court of first instance was entered in the address above, and the address of the plaintiffs (appellant; hereinafter the appellant was entered in the appeal petition of this case) was sent to the above address as the copy of the appeal petition of this case and the first date for pleading (10:00 on October 31, 1990). The presiding judge of the court below ordered the appellant to correct the address of the appellant on October 17, 1990, and the court below did not notify the re-appellant of the correction order, but did not notify the re-appellant of the correction order and did not notify the re-appellant of the correction order.
However, according to each mail delivery report of this case (record 443-48), the appellant Kim Jung-chul was "domicile's address unknown", and the appellant's objection and Jeon Jong-dae were all impossible to serve with the reasons for non-delivery. If the person to receive the document is not present at the place to serve the document under Article 172 of the Civil Procedure Act, the document may be delivered to his office worker, employee, or inmate with the mental capacity to change his address (the supplementary service) and if the person to receive the document refuses to serve the document without any justifiable reason, the document may be placed at the place to serve the document (the document to be served). Thus, the appellant's appeal, who was sent the first time of delivery, did not order the correction of his address because it was impossible to serve the document due to the absence of the addressee at the time of delivery, and the appellant did not order the correction of his address due to his mistake in submitting the petition of appeal to the Seoul High Court on May 30, 199.
Therefore, the original order is reversed, and the case is remanded to the Seoul High Court. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Lee Woo-soo (Presiding Justice)