공사대금반환
The plaintiff's appeal against the defendant C shall be dismissed.
The following shall be paid to Defendant B in the judgment of the first instance.
1. We examine whether the Plaintiff’s appeal against the Defendant C is lawful, ex officio, by examining the Plaintiff’s appeal against the Defendant C.
An appeal shall be filed within two weeks from the date on which the written judgment of the court of first instance is served (Article 396(1) of the Civil Procedure Act). Since the above period is a peremptory term (Article 396(2) of the Civil Procedure Act), an appeal filed after the above period of appeal expires, is unlawful as it fails to meet the requirements
The facts that the original copy of the judgment of the first instance in this case was served on October 28, 2019 are clearly recorded.
Therefore, the Plaintiff filed an appeal against Defendant C by November 11, 2019, which is within two weeks from that time, even though it had filed an appeal against Defendant C. However, the Plaintiff filed an appeal from November 19, 2019, when the period of appeal expires.
Meanwhile, 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 neglected within two weeks from the date on which such cause ceases to exist.” The reason why the “party” is not attributable to him/her refers to the reason why the party could not comply with the period even though he/she had paid general attention to conduct such procedural acts (see, e.g., Supreme Court Decision 2005Da14465, Sept. 15, 2005). However, any circumstance that the Plaintiff filed an appeal against Defendant C with the lapse of the appeal period does not reveal that the Plaintiff constitutes “where the party is unable to comply with the peremptory period due to any cause not attributable to him/her.”
Ultimately, the Plaintiff’s appeal against Defendant C should be dismissed as unlawful.
2. Basic facts
A. The Plaintiff is the owner of a house located in Sacheon-si D (hereinafter “instant house”).
B. On February 24, 2018, the Plaintiff concluded a contract for the repair work of the instant housing with Defendant B by setting the construction cost as KRW 32,370,000.
(c).