(영문) 대법원 2016.12.15.선고 2016다223142 판결

1. As to whether the appeal of this case was lawful, if a duplicate of the petition of appeal and the summons of the date for pleading by public notice was 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 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 may be deemed to have failed to know of the service of the judgment without negligence, and in such a case, the defendant falls under a case where the peremptory period was impossible due to a cause not attributable to him/her, and thus, 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, 199; 209Da

According to the records, the lower court: (a) served a duplicate of the instant petition of appeal and a writ of summons on the date of pleading by public notice; (b) served on July 25, 2014, the part concerning the request for registration of cancellation of the registration of the establishment of a neighboring mortgage on the first instance judgment; and (c) served the original copy of the judgment on July 28, 2014 by public notice; and (d) served the Defendant on July 28, 2014; (b) however, the lower court did not know of the fact that the lower judgment served on the Defendant by public notice; and (c) even after the period of appeal against the lower judgment was served on April 25, 2016, the lower court presented to the lower court on May 9, 2016.

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 April 25, 2016 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. With respect to the grounds of appeal on which the right to appeal was infringed as a party’s right in the procedure, the defendant did not know the fact that all the lawsuit documents were served by public notice and without any cause attributable to it. In such a situation, the court below’s date for pleading is proceeding without the defendant’s appearance, and the defendant lost an opportunity to assert and prove the plaintiff’s claim, thereby infringing on the right granted as a party’s procedural right. In such a case, Article 424(1)4 of the Civil Procedure Act can be applied mutatis mutandis in view of the same as the case where the party was not duly represented by his/her agent. In this regard, the judgment of the court below

3. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal, 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.