[대여금][공2011하,2571]
In a case where a copy, etc. of the petition of appeal was served to the address of the appellee stated in the petition of appeal, but it was impossible to serve the petition due to the impossibility to identify him/her, and the presiding judge ordered the appellant to correct his/her address and rejected the petition of appeal on the ground that he/she did not correct his/her address, the case holding that the court below's order dismissing the petition of appeal is unlawful, since it erred in ordering
In a case where a duplicate of the petition of appeal and a notice of first date for pleading stated in the petition of appeal were served to the address of the appellee, but it was impossible to serve the petition on the ground that the presiding judge ordered the appellant to revise the address, and rejected the petition of appeal on the ground that he did not correct the address after he ordered the appellant to correct the address, the case holding that the court below's order dismissing the petition of appeal was unlawful since it was erroneous for ordering the correction of address on the ground that it was impossible to serve the petition of appeal on the sole ground that it was impossible to serve the petition of appeal because the address indicated in the petition of appeal was unknown and the document was not served at the same time, without taking such measures, because it was erroneous for the court to order correction
Articles 401 and 402 of the Civil Procedure Act
Re-appellant
Seoul Southern District Court Order 201Na6309 dated August 23, 2011
The order of the court below is reversed, and the case is remanded to the Seoul Southern District Court Panel Division.
The grounds of reappeal are examined.
According to the records, the application for the payment order in this case or the first instance judgment of the court of first instance stated the address of the defendant (appellant 1 omitted) as the "Seocheon-gu, Seocheon-gu (Appellant 1 omitted), and the address of the appellee (Appellant 1 omitted) was stated in the petition of appeal of this case submitted by the re-appellant (Appellant 1, appellant 2, hereinafter "re-appellant") as the above address. The court below served the appellant a duplicate of the petition of appeal and the first date of pleading notice to the above address but it was impossible for the court below to serve the appellant as "the addressee unknown." The presiding judge of the court below ordered the Re-Appellant on July 15, 201 to correct the address of the appellee, but did not correct the address, and the presiding judge of the court below rejected the petition of appeal of this case on August 23, 2011 on the ground that the Re-Appellant did not correct the petition of this case on the ground that the Re-Appellant was served with the amended address.
However, according to the records, the payment order of this case was served at the court of first instance as "Secheon-gu, Incheon Metropolitan City 7 Dong-dong 7, Dong-dong 7, Dong-dong 2 omitted)" and the decision of recommending settlement of the court of first instance also entered the same place as the place where the respondent was served, and the appellant appointed a legal representative at the court of first instance and raised an objection against the payment order of this case and stated his address in the letter of delegation of lawsuit as "( Address 3 omitted) in the letter of delegation of lawsuit". Thus, the court below should have ordered the correction of his address in the case where the service of this case was attempted to each of the above addresses indicated in the records and the service was not made at all.
Nevertheless, the lower court’s order dismissing the petition of appeal of this case on the ground that it was erroneous for the lower court to order the correction of address by merely failing to take such measures but merely failing to serve the address indicated in the petition of appeal by identifying the address, and thus, the lower court’s order dismissing the petition of appeal of this case was unlawful.
The ground of reappeal assigning this error is with merit.
Therefore, the order of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Jeon Soo-ahn (Presiding Justice)