[위약금청구의소][미간행]
In a case where Gap filed a retrial and the Supreme Court rejected the appeal on the grounds that Gap's attorney, not the attorney-Appellant, served a written notification of the receipt of the trial records on the grounds that the appellate brief was not filed within the deadline, and thus, the Supreme Court asserted that there was a ground for retrial under Article 451 (1) 3 of the Civil Procedure Act in the judgment subject to retrial, the Supreme Court held that, in the litigation procedure for the judgment subject to retrial, since the Supreme Court recorded the notification of the receipt of the trial records on Gap in the electronic litigation system and served the notification of the receipt of the trial records on Gap's attorney's e-mail entered in the electronic document registration pursuant to Article 6 of the Act on the Use, etc. of Electronic Documents in Civil Procedure, it cannot be said that there was no ground for retrial under Article 451
Article 451(1)3 of the Civil Procedure Act and Articles 6 and 11 of the Act on the Use, etc. of Electronic Documents in Civil Procedure, Etc.
Plaintiff (Re-Defendant) 1 and one other
Defendant (Law Firm Min, Attorneys Park Jong-hee et al., Counsel for the defendant-appellant)
Supreme Court Decision 2016Da245579 Decided October 21, 2016
All of the requests for retrial shall be dismissed. The costs of retrial shall be borne by the defendant (Plaintiff).
The grounds for request for retrial shall be examined.
The gist of the grounds for the request for retrial of this case is that the Supreme Court served on the attorney-at-law who is not an attorney-at-law belonging to the defendant (hereinafter “the defendant”) in the litigation of the judgment subject to retrial, and declared that the appeal is dismissed on the ground that the appellate brief was not filed within the deadline, there is a ground for retrial falling under Article 451(1)3 of the Civil Procedure Act (when there is a defect in granting authority of legal representation, power of attorney, or power of attorney necessary to conduct litigation).
However, in the litigation procedure of the judgment subject to a retrial, the Supreme Court recorded the notification of the receipt of the trial record on September 5, 2016 in the electronic litigation system, and served the fact of registering the electronic document to the electronic mail address entered by the defendant's attorney in accordance with Article 6 of the Act on the Use, etc. of Electronic Documents in Civil Procedure, etc., and sent it to the electronic mail address. In such a case, even if the defendant's attorney did not confirm the electronic document recorded by the recipient of the judgment, it shall be deemed to have been served on the date one week elapsed from the date of notification of the registration under Article 11(4) of the above Act. Therefore, even if the defendant's attorney did not receive the notification of the receipt of the trial record, the grounds for retrial under Article 451(1)3 of the Civil Procedure
Furthermore, in light of the relevant legal principles and evidence, the lower court’s judgment on the judgment subject to a retrial is justifiable in its conclusion that dismissed the final appeal, and thus, cannot be accepted even if the instant request for a retrial is based on Article 460 of the Civil Procedure Act, because it did not exhaust all necessary deliberations, thereby admitting facts in violation of logical and empirical rules, or misapprehending the legal doctrine on revocation by deception, or omitting judgment on the Defendant’s assertion.
Therefore, all of the appeals are dismissed, and the costs of retrial are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Park Jung-hwa (Presiding Justice)