[2] In a case where an unlawful objection against a compulsory adjustment decision is treated as legitimate and the case is implemented or returned to a lawsuit, whether the court of the lawsuit in receipt of the record can reject the objection by the judgment (affirmative)

[2] The decision of revocation of an appeal against a decision of rejection of an objection against a decision of compulsory adjustment does not constitute a case where a substantive relation is ultimately determined. Thus, res judicata cannot be deemed to exist. In a case where an unlawful objection against a decision of compulsory adjustment is treated as legitimate and the case is implemented or returned to a lawsuit, the court in charge of the lawsuit in receipt of the record may reject the objection by a judgment in a case where it is deemed unlawful after examining the legality of the objection, and the legality of the objection becomes final and conclusive.

2. Defendants 2, 3, and 4 jointly and severally pay to the Plaintiff the amount of KRW 125,00,000 and the amount of KRW 20% per annum from April 16, 2006 to May 16, 2007, Defendants 2 and 3 to May 16, 2007, Defendants 4 to 5% per annum from July 10, 2007, and 20% per annum from the following day to the date of full payment.

3. The litigation costs incurred after the plaintiff and the defendant 1 corporation return to the lawsuit by filing an objection shall be borne by the defendant 1 corporation, the plaintiff 2, the defendant 3, and the defendant 4, respectively.

4. Paragraph 2 can be provisionally executed.

(a) Progress;

The following facts are clear in records:

(1) The mailman Nonparty 1, who belongs to the Seoul Bupyeong-gu Office, served the instant litigation documents on Defendant 1 Company with Nonparty 2, Nonparty 3 and his wife, who is the joint representative director of Defendant 1 Company, and written a service report stating the following specifications.

Nonparty 3, on June 8, 2007, including a copy of a complaint, which is the delivery date of the Nos. 1 in the main text, the delivery date of non-party 3, the non-party 4, the non-party 4, the non-party 1, the non-party 2, the non-party 2, the non-party 2, the non-party 4, the non-party 2, the non-party 2, the non-party 2, the non-party 2, the non-party 4, the non-party 2, the non-party 2, the non-party 2, the non-party 4, the non-party 2, the non-party 1, the non-party 2, the non-party 2, the non-party 2, the non-party 2, the non-party 4, the non-party 2, the non-party 2, the non-party 4, the non-party 2, the non-party 2, the non-party 2, the non-party 28, the non-party 28.

(2) On August 6, 2008, Defendant 1 Co., Ltd submitted a written objection to the instant compulsory adjustment order under Paragraph (6) of the said Table. Based on the service report of the original copy of the decision, the court rejected the objection by deeming the objection to have been submitted with the lapse of the period from July 22, 2008 to two weeks, which is the date of service of the original copy of the decision.

(3) However, as the address of Nonparty 2, the Plaintiff revised the address of Defendant 1 corporation to its address, and the Plaintiff was under construction on May 22, 2008 and the new construction of the apartment house was in progress at the place of delivery by the court clerk of Eunpyeong-gu Seoul Metropolitan City (hereinafter omitted). Accordingly, Nonparty 2 resided in the construction site at approximately 500 meters away from his family and was receiving delivery request for delivery of the mail to the above place. Nonparty 1 visited the above place on July 22, 2008 and served the original copy of the compulsory adjustment decision as above to Nonparty 4. However, the delivery place was written a written report stating the service number 1 omitted.

(4) As to the decision to dismiss the objection of this court, Defendant 1 corporation filed an immediate appeal with Busan High Court No. 2008Ra290, and the appellate court did not know that it is Nonparty 2’s address or residence. The designated service place is not a designated service place, and thus, it cannot be deemed as an effective supplementary service, and revoked the decision to dismiss the objection of this court on the ground that it cannot be deemed as an effective supplementary service, and it became final and conclusive as it is against the re-appeal period.

B. Opinion of this Court

(1) In principle, service shall be made at the place of service, which is the domicile, residence, place of business, or office of a person to be served as prescribed by Article 183(1) of the Civil Procedure Act. If a person to be served is not present at the place of service as prescribed by the above Article 183(1) of the Civil Procedure Act, service may be made by means of supplementary service, which is made by delivering documents to his office worker, employee, or cohabitant with mental capability who

On the other hand, according to Article 3 of the "Education of Postal Service Editors (2003-17, Dec. 31, 2003)", where the person to receive service can accurately identify the place where the director was a director, the mailman may send it to the court or return it to the court, stating the place where the director was a director. Accordingly, if the document is sent to the director, it shall be deemed that it was served at the time of receipt from the place where the document was sent to the director.

If a person to be served had a director at a nearby domicile at the previous domicile, but two houses and live together while living together with the resident registration at the previous domicile, both of them will be served respectively (see Supreme Court Decision 87Meu943, Nov. 10, 1987). Even if a person to be served with a complaint or any other place other than the place reported by the party as the place of service in writing was served, such service is lawful as long as the place of service is without the identity of the actual address, residence, place of business, or office of the person to be served (see Supreme Court Order 80Ma93, Apr. 23, 1980).

Examining the above legal provisions, legal principles, and precedents in light of the facts acknowledged earlier, it is reasonable to view that Nonparty 1 served the original copy of the compulsory adjustment decision (number 2 omitted) is the place where Nonparty 2 and his family move to and resided in the building at his domicile, and that other mail against Nonparty 2 was served at the above site upon Nonparty 2’s request, and thus, it belongs to the domicile or residence corresponding to the place of service as stipulated in Article 183(1) of the Civil Procedure Act, at the center of Nonparty 2’s living, and it is reasonable to view that Nonparty 1 sent the original copy of the compulsory adjustment decision to Nonparty 2 and his family to Nonparty 4, the wife of Nonparty 2, who was the head of the above court, at the address designated as the service place (number 1 omitted) and served the authentic copy of the instant compulsory adjustment decision at the place of service as stipulated in the above legal provisions.

(2) The decision of revocation of an appeal against a decision of rejection of an objection against a decision of compulsory adjustment does not constitute a case of final determination of the substantive relationship. As such, res judicata cannot be deemed to exist. In a case where an unlawful objection against a decision of compulsory adjustment is treated as legitimate and the case is implemented or returned to a lawsuit, the court in charge of the lawsuit in receipt of the record may reject the objection by judgment in a case where it is deemed unlawful after examining the legality of the objection, and the legality of the objection becomes final and conclusive.

On the other hand, according to Article 16(1) of the Civil Conciliation Rule, the court of the lawsuit shall dismiss the objection when the judge in charge of conciliation fails to dismiss it, even though the objection is not legitimate. However, it is difficult to apply to this case where the court of the lawsuit directly handles the conciliation case, and the court of the lawsuit has already issued a decision to dismiss the objection.

(3) Therefore, Defendant 1 Co., Ltd.’s objection filed on August 6, 2008 shall be dismissed on the ground that it is unlawful for Defendant 1 Co., Ltd to set the period of filing an objection within two weeks from the date of lawful delivery of the original copy of the decision of compulsory adjustment.

2. Judgment on the merits

(a) Basic facts;

(1) On July 25, 2003, the non-party 5 Co., Ltd. obtained a building permit to set up the two underground floors, the 15th floor of the ground, and the 15th floor and the 2nd class neighborhood living facilities, jointly with the defendant 4 on July 25, 2003, the non-party 5 Co., Ltd., and the non-party 3, the representative director of the non-party 5 Co., Ltd. and the defendant 2, the head of the construction site of the non-party 5 Co., Ltd., the non-party 5 Co., Ltd. requested construction to the plaintiff.

(2) Around August 30, 2005, the Plaintiff made and installed multi-story cycle type 180,400,000, and each type of direct passenger parking equipment type 10 parts, and delivered the following delivery after the Plaintiff started construction and completed the test operation and operation on February 25, 2006 with the participation of Defendant 3, etc.

(3) Defendant 3 prepared as of August 30, 2005 a parking facility contract between the Plaintiff and Defendant 1 Co., Ltd. with the purport that the Plaintiff would produce and install the above mechanical parking equipment in KRW 180,400,000 of the contract amount and deliver it to the Plaintiff by signing and sealing it as joint and several sureties of Defendant 1 Co., Ltd.

(4) On August 30, 2005, Nonparty 5 paid KRW 15,400,000, and KRW 10,000 on November 5, 2005, and Defendant 2 paid KRW 155,000,000 to the Plaintiff on April 6, 2006, under Defendant 4’s joint and several surety, the remainder of KRW 155,000,000 on April 15, 2006.

(5) On January 28, 2008, the above mechanical parking lot had undergone a pre-use inspection in the name of Nonparty 7.

[Reasons for Recognition]

○ Defendant 2: Facts without dispute, Gap evidence 1, 2, 4, and 5, Gap evidence 6-1, 2, Gap evidence 7, Gap evidence 8-1, 2, Gap evidence 9, Gap evidence 10-1, 2, 3, Gap evidence 11, Gap evidence 12-1 through 4, Gap evidence 12-1, 13-2, non-party 8's testimony to the Korea Transportation Safety Authority, the results of fact-finding on the non-party 8's witness's testimony to the Korea Transportation Safety Authority, the purport of the whole pleadings as a result of the whole pleadings.

○ Defendant 3 and Defendant 4: Articles 208(3)1 and 257(1) of the Civil Procedure Act (a judgment without holding any pleadings)

(b) Markets:

(1) According to the facts acknowledged earlier, Defendant 2 and Defendant 4 are liable to pay the Plaintiff the construction cost of KRW 125,000,000, jointly based on the parking facility work contract prepared by Defendant 3 as of August 30, 2005.

(2) Defendant 2 asserts that since the Plaintiff did not submit the certificate of usage inspection, the payment of the remaining KRW 35,000,000 cannot be complied with.

The above Article 2 of the parking facility contract of August 30, 2005 states that the remaining payment period of KRW 35,00,000 shall not exceed 30 days after the completion of the inspection certificate. However, it cannot be concluded that the above provision's effect extends to Defendant 2, who is not the party or joint guarantor, not the party or joint guarantor of the construction contract. Defendant 2 has completed the examination operation and operation after the completion of the construction work and delivered it. Defendant 2 shall prepare a written confirmation of payment by making payment of KRW 15,00,000 to the balance of the construction cost of April 6, 2006 without setting any other time or condition within the limit of April 15, 2006. In addition, it was concluded that the inspection for use was completed in the name of Nonparty 7 as to the mechanical parking facility. Therefore, the above assertion by Defendant 2 is without merit.

3. Conclusion

Therefore, the objection against the decision of compulsory mediation of this case by Defendant 1 corporation is dismissed as unlawful. Defendant 2, Defendant 3, and Defendant 4 are jointly and severally liable to pay to the Plaintiff damages for delay at each rate of 20% per annum under the Civil Act until July 10, 2007, and 5% per annum under the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings from the following day to the date of full payment. Thus, the plaintiff's claim of this case against Defendant 2, Defendant 3, and Defendant 4 is reasonable and acceptable. It is so decided as per Disposition by the assent of all participating Justices.

Judges Cho Jong-hee (Presiding Judge)