[양육자지정등][미간행]
The meaning of “reasons for which a party cannot be responsible” under Article 173(1) of the Civil Procedure Act
Article 173(1) of the Civil Procedure Act
Claimant
Re-appellant
Principal of the case
Gwangju District Court Order 2005B26 dated February 15, 2007
The reappeal shall be dismissed. The costs of reappeal shall be borne by the Re-Appellant.
Judgment ex officio is made.
1. According to the records, on February 23, 2007, the court below served by public notice on the order of the court below as to the re-appellant on March 10, 2007, which became effective as of March 10, 2007, and the re-appellant submitted the re-appeal of this case to the court below on March 29, 2007 after the expiration of 14 days thereafter. Thus, the re-appeal of this case is unlawful as it was raised with the lapse of lawful period.
2. Furthermore, even if the reappeal is deemed a subsequent supplement of the reappeal, Article 173(1) of the Civil Procedure Act provides that “if a party is unable to comply with the peremptory period due to any cause not attributable to him/her, he/she may supplement the procedural acts in his/her negligence within two weeks from the date on which such cause ceases to exist,” and “reasons not attributable to a party” in this context refers to the reason why the party could not comply with the period even though he/she had exercised generally due care to conduct the procedural acts.
However, according to the records, the Re-Appellant filed an immediate appeal against the judgment of the first instance court on September 5, 2005, and stated on the Re-Appellant's immediate appeal as the place of service "I am Mai-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri- the court below served the Re-Appellant's notice of the date of examination on the above service (the notice was received as a live person on January 31, 2007) and on February 8, 2007, the court below dismissed the Re-Appellant's immediate appeal and delivered the original copy to the court below on February 20, 2007, without any special reasons, it cannot be found that the re-appellant's appeal was not made.
3. Therefore, without examining the grounds for reappeal, the reappeal of this case is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Park Si-hwan (Presiding Justice)