Plaintiff

Defendant (Attorney Choi Byung-il, Counsel for the defendant-appellant)

April 16, 2020

Daegu Family Court Decision 2016Nu7762 Decided December 18, 2019

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

1. Purport of claim

The plaintiff and the defendant are divorced.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Quotation of judgment of the first instance;

The grounds for the Defendant’s assertion in the trial by filing an appeal do not differ significantly from the contents as alleged in the first instance court, and even if examining the newly submitted evidence in the trial, the first instance court’s determination is justifiable. Therefore, the reasoning for the court’s explanation on this case is as stated in the reasoning of the first instance judgment, except for the part on the “legal nature of the Defendant’s objection to the completion of the prosecution” under Article 12 of the Family Litigation Act and Article 420 of the Civil Procedure Act, as stated in the second instance judgment, except for the following two cases.

2. Part to be used again; and

B. Whether the Defendant’s objection to the subsequent completion is lawful

1) According to the former part of Article 173(1) of the Civil Procedure Act, “if a party is unable to comply with the peremptory period due to any cause not attributable to the party concerned, it may supplement the procedural acts neglected within two weeks from the date on which such cause ceases to exist.” Moreover, the subsequent completion of procedural acts under Article 173(1) of the Civil Procedure Act can only be made where the party concerned was unable to comply with the peremptory period due to any cause not attributable to him/her. Here, “reasons not attributable to the party concerned” refers to cases where the party concerned was unable to comply with the period even though he/she had paid due attention to the general obligation to conduct the procedural acts (see Supreme Court Decision 9Da9622, Jun. 11, 1999). In addition, if the party concerned failed to examine the progress of the lawsuit and fails to observe the peremptory period due to any cause not attributable to the party concerned, it shall not be deemed that the party concerned was due to the failure to observe the pronouncement and delivery period of the judgment, and shall be asserted after completion of appeal from the party concerned.

2) As seen earlier, the delivery of the instant decision to recommend reconciliation is lawful. The Defendant did not file an objection within two weeks from the date of lawful delivery of the decision to recommend reconciliation. In light of the aforementioned legal principles, it is insufficient to recognize that the Defendant could not comply with the period of filing an objection due to any cause not attributable to the Defendant, on the ground that the Defendant was hospitalized in the ○○ University △△△△△△△△△△△△△ Hospital from October 4, 2016 to November 14, 2016, when the Defendant was served with the time of service of the instant decision to recommend reconciliation, or that the Plaintiff and the Defendant lived with the Defendant until December 2, 2019, even after the instant decision to recommend reconciliation became final and conclusive, even though the Defendant did not fully exercise due diligence to conduct procedural acts, there is no evidence to acknowledge otherwise.

Rather, the following circumstances, which are acknowledged in addition to the purport of the entire pleadings, are as follows: (a) the Defendant was served directly with the instant complaint on August 4, 2016 and was well aware of the fact that the instant suit was pending; (b) thus, the Defendant could sufficiently identify the progress and consequence of the instant lawsuit by means of questioning and checking with the court; and (c) the Defendant was obligated to investigate the progress of the lawsuit; (b) the Defendant was served with the complaint on August 26, 2019 after the delivery of the original copy of the instant ruling of recommending reconciliation, including the filing of an objection, and the filing of an objection on August 26, 2019 after the delivery of the original copy of the instant ruling of recommending reconciliation. In light of the above, it is difficult to deem that the Defendant’s lapse of the time period for filing an objection to the instant ruling was attributable to the Defendant’s failure to perform the duty to investigate the progress of the lawsuit, and thus, failed to observe the time period for filing an objection due to any cause not attributable to

3. Conclusion

Therefore, the judgment of the first instance court is legitimate, and the defendant's appeal is dismissed as it is without merit. It is so decided as per Disposition.

Judges Lee Sung (Presiding Judge) (Presiding Justice)