[1] The validity of a sentence imposed on a party who has not been adjudicated where the date of adjudication has been notified at a legitimate date for pleading (effective)

[2] The case holding that the first instance court's decision procedure is unlawful in the case where the first instance court in the case of revocation of provisional disposition did not serve a summons on the respondent for the date of pleading, and the respondent did not appear and notified the date of pleading, and the first instance court's decision was rendered without serving a summons for the sentencing date separately

[1] Since a declaration of judgment can be made even when the parties concerned fail to render adjudication, if the court closes it after lawfully holding a pleading and notifies the date of sentencing, it shall be effective for the party who has failed to render adjudication, and even if the party did not serve a writ of summons of the sentencing date, it shall not be deemed that it is unlawful.

[2] The case holding that the first instance court's decision procedure is unlawful in case where the respondent did not lawfully notify the order to designate the date of pleading on the date of pleading, such as where the party did not appear, and the respondent did not separately serve the respondent or his/her legal representative a summons of the sentencing date on the date of pleading, and the first instance court's decision procedure is unlawful, in case where the court below did not separately serve the respondent or his/her legal representative the summons of the sentencing date on the date of pleading of the first instance court in the case of revocation of provisional disposition.

[1] Articles 154 (see current Article 167) and 192 (2) (see current Article 207 (2)) of the former Civil Procedure Act (Amended by Act No. 6626, Jan. 26, 2002); / [2] Articles 387 (see current Article 417) and 192 (1) (see current Article 207 (1)) of the former Civil Procedure Act (Amended by Act No. 6626, Jan. 26, 2002)

[1] Supreme Court Decision 4291No471 decided Feb. 26, 1959 (No. 7, 57) Supreme Court Decision 66Da882 decided Jul. 5, 1966

Space Industry Co., Ltd.

Respondent

Incheon District Court Decision 2002Na3877 delivered on November 8, 2002

The judgment below is reversed, and the case is remanded to the Incheon District Court Panel Division.

1. Progress of lawsuit in the first instance and the procedure for judgment;

In light of the record, the following facts can be revealed when examining the progress of the lawsuit in the first instance trial and the procedure of the judgment.

On February 19, 2002, the first date for pleading was designated and returned as 1:00 on February 19, 2002, and the applicant, the attorney of the respondent and the respondent were present at each time, and the respondent's attorney filed an objection to the second instance court on the date for pleading, and the applicant's representative consented to the application, and the first instance court notified that the next date for pleading is designated later for this purpose.

After that, while the first instance court designated the second date for pleading as of April 10, 2002, the second date for pleading as of April 14, 2002, the applicant, the respondent and all of his/her legal representatives did not serve a writ of summons on the date for pleading. On the date for pleading, only the applicant’s legal representative was present at the date for pleading, and the respondent and his/her legal representative were not present at the court. On the date for pleading, the pleading procedure, such as the applicant’s written application, the statement of the purport of the application and the reason for correction, the statement of the respondent’s response, the statement of the respondent’s response, and the investigation into the applicant’s documentary evidence, was completed, and the date for sentencing was designated and notified as 0:00 on May 1, 2002.

After that, the first instance court did not summon the respondent and his/her legal representative separately from a writ of summons of the sentencing date, and sentenced the judgment in accordance with the original of the judgment while both the respondent, respondent themselves and his/her legal representative are not present at the sentencing date.

2. The judgment of this Court

The declaration of a judgment can be made even in cases where the parties concerned are not adjudicated, so if the court closes the judgment after lawfully holding a pleading and notifies the date of the judgment, it shall also be effective for the party who has not adjudicated, and even if the party did not serve a writ of summons on the date of the judgment, it shall not be deemed as an unlawful act even if it did not serve it (see Supreme Court Decisions 4291Da471 delivered on February 26, 1959, 66Da882 delivered on July 5, 196, etc.).

However, in the case of this case, as seen earlier, only the objection to and the consent procedure on the merits to the trial division on the date of the first instance trial, are to proceed with the procedure for subsequent designation of the date of next pleading, and thereafter, the date of pleading has been progress without notifying the two parties and the attorney of both parties of the writ of summons on the second date of pleading. Thus, even if only the applicant’s attorney appeared and the pleading was made, the lawful pleading cannot be deemed to have been conducted on the date of pleading.

Therefore, even if the pleading has been concluded on the date of pleading and the date of sentencing has been designated and notified, the validity of the designation and notification cannot be deemed to extend to the respondent. Moreover, since a writ of summons is not served separately on the respondent or his/her legal representative, the judgment of the first instance cannot be deemed to have violated the law.

Nevertheless, the court below did not revoke the judgment of the court of first instance pursuant to Article 417 of the Civil Procedure Act, and dismissed the appeal by the respondent for the reasons indicated in its holding. The judgment of the court below is erroneous in the misunderstanding of legal principles as to the procedure of judgment, which affected the judgment.

3. 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 Yoon Jae-chul (Presiding Justice)