The validity of supplementary service to the opposite party residing at the same place as the person receiving the service

Article 172 (1) of the Civil Procedure Act concerning supplementary service refers to a person who belongs to the same household as the person to receive service and lives together with the same household. Thus, even if the recipient resides in the same service place as a steering club of the person to receive service, if the opposite party to the other household resides in the same service place, it shall not be deemed a person living together, and therefore, the service shall not be effective unless there are special circumstances.

Article 172 of the Civil Procedure Act

Supreme Court Decision 77Da2029 Delivered on February 28, 1978

Plaintiff

Defendant Kim-compliance, Counsel for the defendant-appellant

Seoul High Court Decision 80Na3493 delivered on August 26, 1981

The original judgment is reversed, and the case is remanded to the Seoul High Court.

The defendant's attorney's grounds of appeal are examined.

1. According to the reasoning of the judgment below, since the plaintiff and the defendant live together in the Dong-gun, Gyeonggi-si, Gwangju-si, the original copy of the judgment of the court of first instance against the defendant was served on the domicile of the defendant on August 25, 1980 and the fact that the non-party, who is the plaintiff, was living together with the defendant on August 25, 1980 can be recognized as being received by the defendant. Thus, the delivery of the original judgment of first instance against the defendant is lawful as the delivery of the documents to the inmate by the receiver under Article 172 (1) of the Civil Procedure Act, since the peremptory period has expired from the service date of the above service date, the defendant's appeal for subsequent completion of this case filed after the peremptory period has expired is dismissed as unlawful.

2. Article 172(1) of the Civil Procedure Act concerning supplementary service refers to a person who lives together with the same household as the person to whom the service is to be made. Thus, even if the service provider resides at the same service place, if there are children of the opposite parties to the same household who are different in the same service place, they shall not be deemed to be a person living together, and the service thereof shall not be effective unless there are special circumstances (referring to Supreme Court Decision 77Da2029 delivered on February 28, 1978).

3. However, as acknowledged by the court below, even though the above receiver resides in the same place as the defendant's wife as the defendant's wife, if he is immediately the plaintiff's infant and the plaintiff also resides in the same place, the above receiver is the person who belongs to the same household as the plaintiff and is living together with the plaintiff. Thus, the non-party, who is the plaintiff, is not entitled to receive documents for delivery against the defendant, barring any special circumstance, and therefore, the court below dismissed the defendant's appeal on the premise that the above service is lawful, and the court below did not err by misapprehending the legal principles on supplementary delivery, which affected the conclusion of the judgment.

Therefore, the argument pointing this out is with merit. 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.

Justices Kim Young-ju (Presiding Justice)