[양수금청구사건][고집1973민(1),383]
In case of failure to appear on the date of pleading under Article 241 of the Civil Procedure Act
The alteration of the date is to cancel the designation before the commencement of the date and to designate a new date to replace it upon the request is a matter within the jurisdiction of the court, so the failure of the date is not cured on the ground that the request for change of the date was made, and even if the date for pleading is the date for examination of evidence, if the date for pleading is not the commencement of the date for pleading, it is to be implemented immediately when the examination of evidence is finished on the date unless the date for pleading is commenced outside the court. Therefore, if the date is neglected, it
Article 241 of the Civil Procedure Act
Supreme Court Decision 65Da2296 delivered on January 31, 1966 (Supreme Court Decision 14 ② civil 53 Decided January 31, 196) Decision 65Da2299 delivered on January 31, 1966 (Supreme Court Decision 1491Da1496 Decided January 14, 196)
Plaintiff
Defendant 1 and one other
Seoul Central District Court (72 Gohap1883) in the first instance trial
On March 21, 1973, this case is considered to have been withdrawn and terminated.
The costs of litigation by the appellant after the application for the designation as the date of pleading under the document dated March 28, 1973 shall be borne by the appellant.
The appellant's attorney, who is an appellant, requested the designation of the date for pleading of the instant lawsuit as to the date for pleading of the instant lawsuit, and the appellant's attorney filed a judgment in the same manner as the Disposition No. 1.
According to the records of this case, on the third day for pleading of December 6, 1972, the parties concerned and their agents did not appear again on the date for pleading of March 21, 1973, respectively.
Therefore, the appeal of this case is concluded on March 21, 1973 by neglecting the date for pleading two or more days by both parties, so it shall be deemed to have been withdrawn on March 21, 1973 pursuant to Articles 378 and 241 (2) of the Civil Procedure Act.
An appellant’s agent fails to appear on the date of pleading or fails to file an application for change of the date on the date of pleading under Article 241 of the Civil Procedure Act. However, since an application for change of the date has already been filed prior to the date of pleading of this case, the appellant’s agent cannot be deemed to neglect the said date of pleading (the date of pleading of December 6, 1972). In addition, on February 28, 1973, the date of pleading of this case, which is the eightth date of pleading of evidence examination, did not appear on the said date, and this cannot be deemed to have been neglected due to the failure to appear on the said date as well as the failure to file an application for designation of the date of pleading for
Therefore, a decision is made. The change of the date shall mean that the designation shall be cancelled before the date begins, and the new date shall be set instead of it. Whether the new date shall be set upon the application for change of the date shall be determined by applying for change of the date, that is, the exclusive jurisdiction of the court, that is, whether the failure of the date shall be cured, and even if the date for the 8th day of pleading on February 28, 1973 is not the commencement of the date for domestic investigation, the examination of evidence is completed on the same date, unless the date for the 8th day of pleading is not the commencement of the date for domestic investigation, and if the date is neglected, the above argument of the appellant's agent shall not be different from the neglect of the date for the pleading, and there is no other assertion as to the fact that the failure of the date for pleading more than two times by the appellant and the appellant's representative is due to a cause for which no responsibility is attributable.
If it is true that the appeal is terminated because both parties and their agents have neglected to observe the date of pleading on which the appeal is filed on two occasions, so it is clear that the withdrawal of appeal has been made.
Therefore, since there is no reason to apply for designating the fixed date by the appellant's representative, the party member will make a final judgment that the appeal has terminated due to the party's failure to reach the fixed date, and it is so decided as per Disposition by applying Articles 95 and 89 of the Civil Procedure Act to the burden of litigation costs after the application for designating the fixed date.
Judges Lee Ho-ho (Presiding Judge)