[1] In a case where it is recognized that the defendant was not aware of the service of the judgment without negligence by means of service such as a duplicate of the complaint and the original copy of the judgment by public notice, whether an appeal for subsequent completion is allowed (affirmative), and in this case, the meaning of "after the cause ceases to exist," which is the starting

[2] In a case where the first instance court served a duplicate of the complaint and the original copy of the judgment, etc. to the defendant by public notice; thereafter, the defendant applied against the other party for a provisional disposition prohibiting real estate disposal; the plaintiff received part of the deposit money by receiving a seizure and collection order against the defendant's right to claim recovery of deposit money based on the order to provide security; and where the defendant applied for perusal and reproduction of the records of the deposit case and then filed a subsequent appeal after a considerable period of time, the case holding that it cannot be readily concluded that the defendant knew that the first instance court proceeded with the fact that the defendant applied for perusal and reproduction of the records of the deposit case by public notice, beyond the fact that there was the first instance court's judgment, and that the original copy of the judgment was

[1] Article 173(1) of the Civil Procedure Act / [2] Article 173(1) of the Civil Procedure Act

[1] Supreme Court Decision 2011Da19430 Decided May 26, 2011

Non-rink loan Co., Ltd. (formerly: non-rink Co., Ltd.)

Defendant Counterclaim (Attorney Jeong-won, Counsel for the plaintiff-appellant)

Seoul Central District Court Decision 2017Na68952, 74216 Decided April 25, 2018

The judgment below is reversed, and the case is remanded to the Seoul Central District Court.

The grounds of appeal are examined.

1. Where a copy of a complaint, an original copy of a judgment, etc. were served by service by public notice, barring any special circumstance, the defendant was unaware of the service of the judgment without negligence. In such a case, the defendant was unable to comply with the peremptory period due to a cause not attributable to him/her, and thus, he/she is entitled to file a subsequent appeal within two weeks after such cause ceases to exist. Here, “after the cause ceases to exist” refers to the time when the party or legal representative becomes aware of the fact that the judgment was served by public notice, rather than when the party or legal representative becomes aware of the fact that the judgment was served by public notice. In addition, barring any special circumstance, in ordinary cases, only when the party or legal representative peruses the records of the case or received the original copy of the judgment by public notice (see Supreme Court Decision 2011Da19430, May 26, 2011, etc.).

2. A. Review of the reasoning of the lower judgment and the record reveals the following.

1) In the instant lawsuit brought by the Plaintiff (Counterclaim Defendant; hereinafter “Plaintiff”) against the Defendant (Counterclaim Plaintiff; hereinafter “Defendant”) the first instance court rendered a decision to serve a public notice on the Defendant that the documents, such as a duplicate of the complaint, were not served on the Defendant, and subsequently rendered a judgment in favor of the Plaintiff on November 14, 2008. The original copy of the first instance judgment was served on the Defendant by public notice and became effective on December 3, 2008.

2) The Defendant filed an application against Nonparty 1 for provisional disposition prohibiting the disposal of real estate, and deposited KRW 14,00,000 in accordance with the order to provide security in that case (hereinafter “the instant deposit case”). The Plaintiff, based on the judgment of the first instance, received KRW 4,543,966 out of the deposit money upon receipt of the seizure and collection order issued on October 19, 2012 regarding the Defendant’s right to claim the collection of deposit money. The Defendant filed an application for perusal and duplication of the records of the instant deposit case on June 3, 2013.

3) On September 8, 2017, the Defendant issued a certified copy of the judgment of the first instance on the instant date, and submitted the instant written appeal to the court on the 12th of the same month, and thereafter, issued a certificate of facts as to the withdrawal details of the instant deposit case, and submitted it to the court below as evidentiary materials. The said certificate of facts omitted the part of the Defendant’s written application for perusal and duplication of the records as of June 3, 2013.

B. Based on such factual basis, the lower court sufficiently confirmed that the Defendant was aware of the fact that the record of the instant deposit case was served by public notice around June 3, 2013 on or after the filing of the request for perusal and reproduction of the records. The lower court determined that the instant counterclaim, which was filed only by the Defendant at the appellate court, was extinguished due to the extinguishment of the lawsuit, on the grounds that the instant appeal was filed more than 14 days after the filing of the appeal period.

3. We examine the judgment of the court below in light of the above legal principles.

A. On September 8, 2017, the Defendant applied for the issuance of a certified copy of the judgment of the first instance, which was first issued a certified copy of the judgment of the first instance, and there was no evidence to deem that the Defendant either perused the records of the instant case or received the certified copy of the judgment of the first instance.

In addition, even if the Defendant perused and copied the records of the deposit case of this case, it is difficult to deem that the materials revealed even if the case number of the first instance court of this case and the fact that the first instance court, other than the parties, was proceeding by service by public notice, were recorded in

Therefore, just because the Defendant applied for perusal and duplication of the records of the instant deposit case, it cannot be readily concluded that the Defendant was aware of the fact that the first instance court went beyond the existence of the judgment of the first instance and proceeded with the method of service by public notice, and that the original copy of the judgment was served by public notice.

B. The Defendant considered that the Plaintiff’s seizure and collection order regarding the Plaintiff’s right to claim the deposit was based on the lending company, and the Plaintiff asserted that the transferee transferred the Defendant’s claim to the Defendant of the National Bank, not based on the direct obligation with the Defendant, but on the fact that the Defendant was completely unaware of the fact of transferring the claim. On the contrary, even if the Defendant filed an application for perusal and reproduction of the record of the deposit case, there was room for lack of awareness as to whether the seizure and collection of the above right to claim the deposit was based on the judgment of the first instance court, and therefore, it is difficult to deem that the Defendant had any special circumstance to recognize the circumstance of the first instance trial.

C. Furthermore, even if the part of the Defendant’s statement on the statement of withdrawal in the instant deposit case submitted by the Defendant was omitted, it cannot be deemed that the Defendant intentionally omitted the fact that the judgment of the first instance was delivered by service by public notice at the time of the aforementioned perusal and duplication application.

D. Nevertheless, the lower court, solely on the grounds stated in its reasoning, determined that the instant appeal was filed after the lapse of the period, and the counterclaim was terminated due to the extinguishment of the lawsuit, and thus, it erred by misapprehending the legal doctrine of the Supreme Court as seen earlier.

4. 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 Lee Ki-taik (Presiding Justice)