In cases where a document to be served on a person living together, etc. is delivered to the person living together with the person living together, and his/her cohabitant, etc. has an intelligence to make reasonable judgment, whether the service is effective even if the person living together with the document was not aware of the content thereof

Article 186(1) of the Civil Procedure Act

Supreme Court Decision 2004Do5207 Delivered on November 26, 2004

Plaintiff (Re-Examination Plaintiff) (Attorney Kim Young-soo, Counsel for the plaintiff-appellant)

Seo Yong Construction Co., Ltd. (Attorney Jeon Jong-ho, Counsel for the plaintiff-appellant)

Supreme Court Decision 2016Da201128 Decided March 8, 2016

The request for retrial shall be dismissed. The costs of retrial shall be borne by the plaintiff (Plaintiff).

The grounds for request for retrial shall be examined.

Article 429 of the Civil Procedure Act and Article 5 of the Act on Special Cases Concerning the Procedure for Appeal, the purport of the ground for retrial by the Plaintiff (hereinafter “Plaintiff”) is that there exists a ground for retrial under Article 451(1)3 of the Civil Procedure Act, on the ground that the Supreme Court did not indicate the grounds for appeal in the petition of appeal submitted by the Plaintiff and did not submit the appellate brief within the statutory period, on the premise that the Plaintiff was not served with the notification of the receipt of the notification of the notification of the receipt of the notification of the notification of the trial records, even in a case subject to retrial.

Article 186(1) of the Civil Procedure Act provides that when a person to be served is not present at a place where a service is to be made, other than his/her work place, the document may be delivered to his/her clerk, employee, or cohabitant (hereinafter referred to as “employee, etc.”) who is man of sense. As long as a document to be served is delivered to a person living together with a person to be served with a mental capacity to make reasonable judgment and his/her cohabitant, etc. is intelligent to make reasonable judgment, the service shall be effective even in cases where the person to be served was not actually aware of the contents of the document (see Supreme Court Decision 2004Do5207, Nov. 26, 2004, etc.).

According to the records, the plaintiff stated his/her address in the petition of appeal as "Ulsan Jung-gu ( Address omitted)", and the notification of the receipt of the Supreme Court's notification of the receipt of the notification of the trial record of the Supreme Court on January 15, 2016, which was received by Nonparty 1, who is a person living together with the plaintiff at the above place on the same day, who is the defendant, who was the person who was the defendant, at the place of service, entered the above place immediately after filing the appeal, and entered the place as the place of service, and on May 15, 2014, the plaintiff could also be aware of the fact that Nonparty 2, who was the person who was the plaintiff, was served a certified copy of the written order of correction in the petition

Examining these facts in light of the legal principles as seen earlier, the notice of receipt of records of the Supreme Court’s final appeal is to be legally served on the Plaintiff on January 15, 2016. Ultimately, the instant judgment dismissing the Plaintiff’s final appeal for the same reason as seen earlier after the lapse of 20 days from the date on which the notice of receipt of records of the final appeal was served, cannot be deemed as grounds for retrial stipulated in Article 451(1)3 of the Civil Procedure Act, contrary to the allegations

Therefore, the retrial costs 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 Jo Hee-de (Presiding Justice)