1. Determination as to whether a subsequent completion is lawful

A. Subsequent completion of procedural acts stipulated in Article 173(1) of the Civil Procedure Act refers to a case where a party is unable to comply with the peremptory period due to a cause not attributable to him/her, and “reasons not attributable to him/her” in this context refers to a case where the party was unable to comply with the said period despite his/her due diligence to do the said procedural acts even though he/she fulfilled the duty to do so (see, e.g., Supreme Court Decision 2015Da21322, Aug. 13, 2015).

On the other hand, upon receipt of a report by the receiver, the service must be made to the reported place and the receiver, and at the time of service by several persons, the service takes effect. However, since the effect of the service recipient report is limited only to the corresponding instance, it has no effect in the court proceedings to which appeal or transfer was made.

In addition, Article 185(1) of the Civil Procedure Act provides that "when a party, his/her legal representative or his/her legal representative alters the place where a service is to be made, the purport thereof shall be immediately reported to the court." Article 185(2) of the same Act provides that "in cases where the place where service is to be made by a person who has failed to make a report under paragraph (1) is unknown, the documents may be sent to the previous place where service is to be made by means prescribed by the Supreme Court Regulations," while Article 51 of the Civil Procedure Act provides that "a service by registered mail shall be made by registered mail." In cases where service by registered mail is possible under the above provision, it means a case where service is impossible to be made at the changed place (see, e.g., Supreme Court Decision 2001Da30025, Sept. 7, 201; where the place where service is to be made by a person who has failed to report under paragraph (1) may not be known, or where it is ordered to be sent to the other party ex officio, within 1501.

B. The record reveals the following facts.

(1) On February 15, 2016, the Plaintiff submitted to the first instance court a complaint stating that the Plaintiff’s address “Seoul Jongno-gu C and D, 615,” and filed a report with the Seoul Seocho-gu D building, 103, and the recipient of the service as a certified judicial scrivener E.

(2) On July 21, 2016, the first instance court rendered a judgment to partially accept the Plaintiff’s claim, and the Defendant submitted a petition of appeal to the first instance court on August 10, 2016.

(3) However, the lower court served the Plaintiff with the place of service (a certified judicial scrivener E office), a duplicate of a petition of appeal and a guide of lawsuit, and the F of the general affairs of the office E of a certified judicial scrivener E office received on September 5, 2016.

(4) The court of original judgment again served the notice of the first and second dates for pleading to the above service place, but all of them were not served on the ground that the addressee is unknown, thereby serving the notice by means of delivery by registered mail.

(5) The Plaintiff was not present at each date of pleading Nos. 1 and 2. On November 30, 2016, the lower court closed the pleadings on the second date of pleading, and revoked the part against the Defendant in the judgment of the first instance on December 14, 2016, and rendered a judgment dismissing the Plaintiff’s claim corresponding to the revoked part.

(6) The lower court served an original copy of the judgment on December 26, 2016 to the Plaintiff as the service place, but was not served on the ground of unknown whereabouts. On October 27, 2017, the Plaintiff was aware of the fact that the lower judgment was pronounced, and submitted a subsequent appeal to the lower court on October 27, 2017. Examining these facts in light of the legal principles as seen earlier, it is difficult to view that the service of a duplicate of the petition of appeal and a written guidance for lawsuit, which the lower court served on the Plaintiff, was merely a delivery to the recipient of the first instance court without the authority to receive the service, and thus, the said documents were not lawfully served to the Plaintiff. Furthermore, insofar as the effect of the report, which was served on the first instance court, falls short of the original court’s delivery of the original copy, it is difficult to view that the Plaintiff was not a service place without reporting the purport thereof to the lower court. Furthermore, it is reasonable to view that the Plaintiff did not appear to have served the notice by means of registered mail, etc., the Plaintiff’s address.

2. Determination on the assertion of procedural infringement of rights

As a copy of the petition of appeal was served in an unlawful manner, the Plaintiff was not aware of the fact that the appeal was filed for the instant case due to a cause not attributable to the Plaintiff, and the date for pleading of the lower court without the Plaintiff’s appearance, which led to the violation of the rights conferred by the Plaintiff as a party to the procedure. In such a case, the provision of Article 424(1)4 of the Civil Procedure Act may apply mutatis mutandis to the case where a party was not duly represented by his/her agent (see, e.g., Supreme Court Decision 2015Da22663, Jul. 23, 2015). In this regard, the lower court’s judgment was unable to be maintained any more unlawfully. The allegation in the grounds of appeal

3. Conclusion

The lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Go Young-young

Justices Kim In-young

Justices Kim Jong-il