[1] In a case where the original copy, original copy, etc. of a complaint is deemed to have been served by public notice and the defendant was deemed to have failed to know the service of the judgment without negligence, whether an appeal for subsequent completion is permitted (affirmative), and in such a case, the meaning of “after the cause ceases to exist,” which is the starting point of the period for filing a subsequent appeal

[2] In a case where the first instance court served a copy of the complaint and the original judgment on the Defendant by public notice; thereafter, an employee of the company who was requested to collect claims from the Plaintiff in currency with the Defendant and then served a debt collection order based on the judgment of the first instance court; and the Plaintiff followed the judgment of the first instance court and served the Defendant with a seizure and collection order based on the Defendant’s deposit claim upon the judgment of the first instance court, the Defendant received a certified copy of the judgment of the first instance, and subsequently filed an appeal for subsequent completion, the case holding that the lower court erred by misapprehending legal principles, on the grounds that in light of all the overall circumstances, it was difficult to view that the Defendant was aware of the fact of the first instance judgment, and that there was no special circumstance to recognize the process of the first instance court lawsuit through the perusal of court records, even though it was difficult to view otherwise by misapprehending legal principles.

[1] Article 173(1) of the Civil Procedure Act / [2] Article 173(1) of the Civil Procedure Act

C. C. C. P.C.

Defendant

Busan District Court Decision 2019Na156 Decided July 4, 2019

The judgment below is reversed, and the case is remanded to Busan District Court.

The grounds of appeal are examined.

1. Where the original copy, original copy, etc. of a complaint was served by service by public notice, barring any special circumstance, the defendant was unaware of the service of the judgment without negligence. In such a case, the defendant is unable to comply with the peremptory period due to a cause not attributable to him/her, and thus, he/she is entitled to file a subsequent appeal within two weeks after such cause ceases to exist. Here, “after the cause ceases to exist” refers to the time when the party or legal representative becomes aware of the fact that the judgment was served by public notice, rather than the time when the party or legal representative becomes aware of the fact that the judgment was served by public notice. In addition, barring any special circumstance, in ordinary cases, 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 authentic copy of the judgment by public notice. However, if it is deemed that there were special circumstances to recognize the fact that the defendant was aware of the fact that the judgment was served by public notice at the time when the time was ordinarily required.

2. A. Review of the reasoning of the lower judgment and the record reveals the following.

(1) On November 7, 2008, the Plaintiff filed a lawsuit against the Defendant, etc. seeking the payment of goods. The first instance court rendered a decision of service by public notice to the Defendant where the documents, such as a duplicate of the complaint, were not served on the Defendant, and rendered a judgment in favor of the Plaintiff on May 27, 2009. The original copy of the first instance judgment was served on the Defendant by public notice and became effective on May 30, 2009.

(2) On October 31, 2018, a credit information company’s employee requested debt collection based on the judgment of the court of first instance to the Plaintiff stated that “A debt collection based on the judgment of the court of first instance is conducted. If a legal measure is withdrawn, there is disadvantage to the court.”

(3) On November 28, 2018, the Plaintiff received a seizure and collection order against the Defendant’s deposit claims, based on the judgment of the first instance court of this case, and served the Defendant on December 13, 2018.

(4) On December 24, 2018, the Defendant received a certified copy of the judgment of the first instance on the instant case, and submitted a written appeal for subsequent completion to the first instance court on December 31, 2018.

B. On October 31, 2018, based on the foregoing factual basis, the lower court determined that the instant appeal filed after the lapse of two months thereafter, was unlawful, on the ground that the Defendant had known the fact that the first instance judgment had existed in around October 31, 2018, which was exchanged with a credit information company’s employees, and that there were special circumstances to identify the developments leading to the first instance trial.

3. However, it is difficult to accept such a determination by the lower court for the following reasons.

A. The fact that the Defendant visited the first instance court on December 24, 2018 and received a certified copy of the judgment of the first instance court of this case for the first time is significant in this court. There is no evidence to deem that the Defendant either perused records or received the judgment of the first instance court.

B. The Defendant asserts that there was a few different decisions regarding the Defendant’s husband’s obligation to pay for the goods that occurred after business registration was made under the Defendant’s name, and that the Plaintiff knew that he would have been able to repay the said obligation. If such circumstance is the same, it is difficult to deem that the Defendant knew the fact that the first instance judgment was made, and that there was a special circumstance to recognize the circumstances of the first instance trial through the perusal of court records, etc., on the sole basis of the circumstance that the Plaintiff had talked with the employees of a claims collection agency that would collect

C. Meanwhile, on December 13, 2018, the Defendant received a delivery of a seizure and collection order on the Defendant’s deposit claims based on the judgment of the first instance court on December 13, 2018, and became aware of the fact that the judgment of the first instance was issued a certified copy of the judgment of the first instance on December 24, 2018, which was ten (10) days later, and was served by means of service by public notice, and thereafter filed the instant appeal on December 31, 2018, which was before the filing of the appeal period. In light of the time interval and the developments leading up to the filing of the instant appeal, it is difficult to deem that the instant appeal was filed two weeks after the lapse of two weeks after the date when the cause for not complying with the appeal period ceases to exist. The Supreme Court Decision 98Da43533, Feb. 9, 199 cited by the lower court differs from the instant case, and thus, it is inappropriate to invoke the instant case.

D. Nevertheless, solely on the grounds indicated in its reasoning, the lower court determined that the instant appeal was unlawful by the lapse of the period for filing a subsequent appeal. In so determining, the lower court erred by misapprehending the legal doctrine on subsequent completion of procedural acts and failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment. The allegation contained in the grounds of appeal

4. 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 Kim Jong-hee (Presiding Justice)