임대차보증금반환
1. The instant lawsuit was concluded on October 14, 201 as deemed the withdrawal of the Plaintiff’s appeal.
2. After filing an application for designation of the date.
1. The following facts are remarkable or obvious in records in this Court:
The first instance judgment of this case was sentenced on October 11, 2016, and the Plaintiff submitted a petition of appeal on October 25, 2016 after receiving the above judgment on October 12, 2016.
B. The Plaintiff was served on December 26, 2016, but was not present on the date of first pleading opened on February 8, 2017, and the Defendant was also absent on the said date of pleading.
C. The Plaintiff was present at the date for pleading 2, 3, 4, and 5, and was present at the date for pleading 5, and was present at the date for pleading 6, but was notified of the date for pleading 6, the Plaintiff was absent at the date for pleading 6 ( September 13, 2017), and the Defendant was present at the said date for pleading, but did not present at the pleading.
On January 22, 2018, the Plaintiff applied for the designation of the date.
2. Determination
A. According to Articles 408 and 268(1) through (2) of the Civil Procedure Act, when both parties have failed to appear or present at the court of appeal two times during the course of an appellate trial, but have failed to do so, an application for designating a date shall be filed within one month, and the appeal shall be withdrawn unless an application for designating a date is filed within one month.
B. On October 14, 2017, the instant lawsuit was concluded after the Plaintiff’s second absence, deeming that the Plaintiff’s appeal was withdrawn.
The deemed withdrawal of an appeal can not be determined by the court or the parties’ intent as a matter of course as a matter of course due to the fulfillment of the above requirements, and even if the parties are willing to perform the litigation, such effect cannot be denied, and it cannot be arbitrarily handled in accordance with the court’s discretion or the content and progress of the litigation
(See Supreme Court Decision 81Da94 Decided October 12, 1982). The date of application for the designation filed on January 22, 2017 by the Plaintiff was submitted on or after the lapse of one month after the second absence of both parties, which affected the effect of deeming the withdrawal of an appeal.