(영문) 서울중앙지방법원 2016.09.01 2015나47678

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크기(pt)

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줄 간격

자간(%)

(영문) 서울중앙지방법원 2016.09.01 2015나47678

손해배상(기)

Text

1. Revocation of a judgment of the first instance;

2. The plaintiff's claim is dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

Reasons

1. If a copy of a complaint, an original copy, etc. of the judgment were served by means of service by public notice, barring any special circumstance, the defendant was unaware of the service of the judgment without negligence, and in such a case, the defendant is deemed unable to comply with the peremptory period due to a cause not attributable to him/her and thus, he/she is entitled to file an appeal for subsequent completion within two weeks after such cause ceases to exist.

Here, the term “after the cause has ceased” refers to the time when a party or legal representative becomes aware of the fact that the judgment was delivered by public notice, instead of simply knowing the fact that the said judgment was delivered by public notice. Barring special circumstances, it shall be deemed that the party or legal representative becomes aware of the fact that the judgment was served by public notice only when the party or legal representative inspected the records of the case or received a new original of the judgment.

(See Supreme Court Decision 2004Da8005 Decided February 24, 2006, etc.). According to the record, the court of first instance may recognize the fact that the original copy of the judgment was served to the Defendant by public notice on July 24, 2013, and the Defendant filed the instant appeal on July 28, 2015.

In light of this, it is reasonable to view that the defendant could not observe the period of appeal due to the lack of his knowledge of the progress and result of the lawsuit in this case by means of service by public notice. Unlike special circumstances that the defendant had become aware of the fact that the judgment of the first instance court had already been served two weeks prior to the date of filing of the appeal for the subsequent completion of appeal of this case, the appeal of this case is required to complete the litigation of this case.

참조판례

-대법원 2006. 2. 24. 선고 2004다8005 판결

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