[1] The meaning of "when the place for delivery, which is the requirement for delivery, is not known" under Article 171-2 (2) of the former Civil Procedure Act

[2] The case holding that the first instance court's measure of delivery by registered mail was unlawful when a summons of the date of pleading, which was served to the defendant's place of service indicated in the plaintiff's written correction of address, was not served

[3] Where the procedure of the judgment of the court of first instance is contrary to the law, the court below should revoke the entire judgment of the court of first instance and make a new decision on the merits after the new procedure for all pleadings

[1] Article 171-2 (2) of the former Civil Procedure Act (amended by Act No. 6626 of Jan. 26, 2002) provides that the term "only when the place to be served on the basis of delivery is unknown" means that the other party can be served by registered mail only in cases where it is not necessary to order the other party to correct his/her address or to investigate his/her resident registration card, etc. ex officio, but the place to be served on the records is unknown.

[2] The case holding that the first instance court's disposition that sent by registered mail was unlawful, when it was impossible to serve a writ of summons on the defendant's place of service stated in the plaintiff's written correction of address without viewing the delivery of a copy of the complaint, or the sending of the defendant's written response to the defendant's place of service

[3] The case holding that since the first instance court’s conclusion of pleading and designation and notification of the sentencing date are when the procedure of the first instance judgment is in violation of the law, the court below should revoke the entire judgment of the first instance and re-determine all the procedure of pleading, including the statement of the complaint, and then re-determine the merits

[1] Article 171-2 (see current Article 185) of the former Civil Procedure Act (amended by Act No. 6626 of Jan. 26, 2002) / [2] Article 171-2 (see current Article 185) of the former Civil Procedure Act (amended by Act No. 6626 of Jan. 26, 2002) / [3] Articles 416 and 417 of the Civil Procedure Act

[1] Supreme Court Decision 97Da23464 delivered on September 26, 1997 (Gong1997Ha, 3243) Supreme Court Decision 2001Da31592 delivered on August 24, 2001 (Gong2001Ha, 2071Ha, 2071)

Plaintiff

Defendant

Daejeon High Court Decision 2003Na3339 delivered on January 15, 2004

The judgment of the court below is reversed, and the case is remanded to Daejeon High Court.

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.

A. On June 23, 2000, the first instance court sent the copy of the complaint against the defendant to the "Yansan-gu ( Address 1 omitted) in the Seoul Special Metropolitan City, the service place of the defendant stated in the plaintiff's written correction of address on June 23, 200," and on July 3, 2000, the non-party, who is the defendant's business, received the copy of the complaint from the "Yansan-gu ( Address 2 omitted) in the Seoul Special Metropolitan City."

B. Since then, while the first instance court served a writ of summons for the first time against the Defendant on the date of pleading as stated in the Plaintiff’s written correction of address, it was impossible to serve it on the Defendant by registered mail due to the reason that the director is unknown, the court served the delivery by the above ○○ Construction. The court served the summons for the date of pleading of the second or eighth vehicles and the summons for the date of pronouncement by registered mail by the same method as the above ○○ Construction.

C. Meanwhile, the defendant submitted a written response to the first instance court on December 23, 200, immediately after the date of the first pleading of December 5, 2000 and immediately after the date of the third pleading of December 23, 200, which is immediately after the date of the first pleading, respectively, and the address column for sending letter bags containing the written response on December 5, 2000 was written as follows: (a) the address column for sending letter bags was as follows: (b) the address column for sending letter bags, including the written response on December 5, 200; and (c) the address column for sending letter bags, including the written response on December 23, 200, was as follows: (a) the address column for sending letter bags, including the address 2 omitted); and (d) the address column for sending letter bags, written as the “Seoul-gu

D. The Defendant did not appear at the date of pleading more than eight times, and the first instance court proceeded with the date of pleading when the Defendant did not appear. On the date of pleading, the pleadings were closed on the date of pleading, and the date of sentencing was designated and announced as 10 cc on October 26, 2001, and the judgment was declared based on the original judgment in the absence of both the Plaintiff, his agent, and the Defendant at the date of sentencing.

2. Judgment of the Supreme Court

Article 171-2 (1) of the former Civil Procedure Act (amended by Act No. 6626 of Jan. 26, 2002) provides that "if a party, legal representative, or attorney has changed the place of service, the purport thereof shall be reported to the court without delay." Paragraph (2) provides that "a service of documents to a person who has failed to make a report under paragraph (1) may be made by registered mail at the place where service is previously made, only when the place where service is to be made is unknown," and "only when the place where service is to be made on a monthly basis is unknown" as mentioned above means that a service by registered mail may be made by means of registered mail only when it is not necessary to order the other party to correct his address or ex officio to investigate the resident registration record card, etc., but it is reasonable to say that a service by registered mail may be made only when the place to be made on the record is unknown (see Supreme Court Decision 201Da31592, Aug. 24, 2001, etc.).

In this case, the defendant's office clerk received a copy of the complaint of this case from "Seong-si ( Address 2 omitted)" which is not the defendant's place for delivery as stated in the plaintiff's address correction statement, and the defendant's office clerk stated "( Address 2 omitted) in the address column for the address of the sender of the letter bags containing the written answers submitted by the defendant." Since the court of first instance stated "Seong-si ( Address 2 omitted) 6 stories in △△ building or "Seong-jin-gu ( Address 3 omitted)", it is obvious that the court of first instance should have served a summons on the place for delivery of the copy of the complaint of this case as recorded in the records or on the address of the sender of each of the above written answers, and have served it by registered mail only when it was not served at that place, it is difficult to serve the summons on the defendant's place for delivery (the place where it was served properly) recorded in the plaintiff's address correction statement, and as a result, service by registered mail is impossible.

Ultimately, the first instance court only served a copy of the complaint on the defendant, and did not legally deliver all the summons for the first date of pleading over 8 times as well as the first date of pleading. However, since the summons for the first instance court is not served to the defendant properly and is proceeding on the date of pleading while the defendant was not present at the court, it cannot be deemed that the lawful pleading has been proceeding since the defendant did not appear at the court. As the pleading is concluded on the date of pleading being unlawful and the designation and notification of the sentencing date have been made on the date of pleading, it cannot be deemed that the designation and notification have been effective to the defendant. Since the summons for the sentencing date has not been served yet, since the court of first instance was not served on the defendant, it cannot be deemed that the first instance judgment is unfair because the serious litigation procedures of the first instance court are contrary to Acts, and the first instance court procedure for the

Therefore, the court below should have revoked the entire judgment of the court of first instance pursuant to Articles 416 and 417 of the Civil Procedure Act, and newly proceeded with all pleadings procedures including the statement of the complaint, the delivery of litigation documents, and the submission of evidence, and then should have judged again on the merits. However, the part against the defendant as to delay damages in the judgment of the court of first instance should be revoked and the remaining appeal by the defendant was dismissed. Thus, the court below erred by misapprehending the legal principles as to serious litigation procedures and the judgment procedures

3. Conclusion

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below. It is so decided as per Disposition.

Justices Byun Jae-chul (Presiding Justice)