If the same recipient is simultaneously served with the litigation document on behalf of both parties to the lawsuit, the validity of the supplementary service (in principle invalid)

The supplementary service system is premised on a reasonable expectation that an agent, employee, or cohabitant, other than the principal, will deliver the documents of lawsuit to the principal in light of social norms, in light of his/her intelligence and objective status, and relationship with the principal, even if the said agent receives the documents of lawsuit. In such cases, it is not easy for the recipient to receive the documents of lawsuit on behalf of both the parties to the lawsuit whose interests conflict with one of the plaintiffs or the defendant. As such, it is difficult for both the parties to the lawsuit to reasonably deliver the documents of lawsuit without conflict of interest. Moreover, it also contravenes the principle of prohibition of dual representation under the main sentence of Article 124 of the Civil Act, which aims to protect their interests by avoiding the risk of conflict of interest, barring any special circumstance such as the consent of the parties to the lawsuit. Therefore, it is reasonable to deem that the same addressee cannot receive the documents of lawsuit simultaneously, and that such supplementary service is null and void.

Articles 178(1), 183(1), and 186(1) of the Civil Procedure Act; Article 124 of the Civil Act

Supreme Court Decision 2014Da54366 Decided November 10, 2016 (Gong2016Ha, 1895)

Plaintiff

Defendant

Daegu Family Court Decision 2020Reu18 decided May 7, 2020

The judgment below is reversed, and the case is remanded to the Daegu Family Court.

The grounds of appeal are examined.

1. As a matter of principle, service may be delivered to the person to be served at his/her domicile, residence, place of business or office (Article 178(1) and Article 183(1) of the Civil Procedure Act). If the service institution fails to retain the person to receive the service at the above place, the service may be made by means of a supplementary service to his/her clerk, employee, or cohabitant, who is man of sense (Article 186(1) of the same Act).

The supplementary service system is premised on a reasonable expectation that an agent, employee, or cohabitant, other than the principal, will deliver the documents of lawsuit to the principal in light of social norms, in light of his/her intelligence and objective status, and relationship with the principal, even if the recipient receives the documents of lawsuit. In such cases, it is not easy for the recipient to receive the documents of lawsuit at the same time on behalf of both parties to the lawsuit whose interests conflict with the Plaintiff or the defendant. As such, it is difficult for both parties to the lawsuit to reasonably deliver the documents of lawsuit without conflict of interest. Moreover, it violates the principle prohibiting dual representation under the main sentence of Article 124 of the Civil Act, which purports to protect their interests by avoiding the risk of conflict of interest, barring any special circumstance such as the consent of the parties to the lawsuit. Therefore, it is reasonable to deem that the same recipient cannot receive the documents of lawsuit simultaneously, and such supplementary service is null and void (see Supreme Court Decision 2014Da54366, Nov. 10, 2016).

2. According to the reasoning of the first instance judgment cited by the lower court, in the instant case where the Plaintiff filed for divorce against the Defendant, the first instance court rendered a decision of recommending a compromise between the Plaintiff and the Defendant (hereinafter “instant decision”). The original copy of the instant decision is the fact that the Nonparty, who is an adult child of the Plaintiff and the Defendant, was simultaneously served on behalf of the Plaintiff and the Defendant.

3. We examine the above facts in light of the legal principles as seen earlier.

The Nonparty was simultaneously served the original copy of the instant decision on behalf of the Plaintiff and the Defendant, both of which are parties to the conflict of interest, and it is difficult to reasonably expect that both the Nonparty and the Defendant were to deliver the litigation documents properly. Therefore, barring any special circumstance, such as the Nonparty’s permission, the Nonparty’s delivery of the original copy of the instant decision on behalf of the Plaintiff and the Defendant at the same time is null and void.

Nevertheless, on the grounds indicated in its reasoning, the lower court determined that the Nonparty’s receiving the original copy of the instant decision as a person living together with the Defendant was valid and that the instant lawsuit was terminated upon the confirmation of the instant decision. In so determining, the lower court erred by misapprehending the legal doctrine on supplementary delivery, thereby adversely affecting the conclusion of the judgment. The allegation contained in

4. Therefore, without examining the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Ki-taik (Presiding Justice)