손해배상(기)
2018Da225654 Compensation for damages
A
B
Law Firm Min-young, Counsel for the plaintiff-appellant
Attorney Lee Dong-ju
Seoul High Court Decision 2017Na2011627 Decided August 24, 2017
June 15, 2018
The judgment below is reversed and the case is remanded to Seoul High Court.
1. Regarding the legitimacy of the appeal of this case. If a duplicate of the petition of appeal and the summons of the date of pleading by public notice were served on the defendant, who is the appellant, by means of service, and the original copy of the judgment was served by public notice, the defendant shall be deemed to have been unaware of the fact that the plaintiff filed an appeal and the appellate procedure was in progress by public notice, and barring special circumstances, the defendant may be deemed not to have been aware of the service of the judgment without negligence. In such a case, the defendant shall be deemed not to have been aware of the service of the judgment without negligence, and in such a case, the defendant shall be deemed to have failed to observe the peremptory period due to a cause not attributable to him/her, and may make a subsequent appeal within two weeks from the date on which such cause ceases to exist (see, e.g., Supreme Court Decisions 95Da21365, May 30,
According to the records, the lower court: (a) served a duplicate of the instant petition of appeal and a writ of summons for the date of pleading by public notice to the Defendant; (b) served the judgment on August 24, 2017; and (c) served the original decision by public notice; and (d) served the Defendant on the basis of service by public notice; (b) he/she was aware of the fact that the lower judgment was served by public notice; and (c) on March 28, 2018, after the lapse of the period for filing an appeal against the lower judgment, he/she was aware of the fact that the lower judgment was pronounced on March 28, 2018, which
Examining these facts in light of the legal principles as seen earlier, the Defendant was unable to comply with the period of final appeal, which is a peremptory term, due to any cause not attributable to himself. In such a case, the Defendant may subsequently make a subsequent supplement of the final appeal from March 28, 2018 to two weeks after having become aware of the fact that the lower judgment was served by public notice. Therefore, the final appeal of this case is lawful.
2. As to the ground of appeal on which the procedural rights of the parties were infringed
The defendant, from the duplicate of the petition of appeal to the delivery of all the litigation documents through service by public notice, was unaware of the fact that the appeal was filed without any cause attributable to the defendant. In such a situation, the date for pleading by the court below without the defendant being present and the defendant is deemed to have infringed on the right granted to the defendant as a party. In such a case, the defendant may apply mutatis mutandis the provisions of Article 424 (1) 4 of the Civil Procedure Act by analogy, considering that the party was not legally represented by an agent. Therefore, the judgment of the court below
3. Conclusion
Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Cho Jae-chul
Justices Kim Gin-young
Chief Justice Kim Jong-il