Whether a subsequent completion is allowed in cases where the appellant had different knowledge of the fact that the appellate procedure was in progress by serving the original appellate judgment by means of service (affirmative)

Articles 173(1) and 424(1)4 of the Civil Procedure Act

Supreme Court Decision 2018Da225654 Decided June 15, 2018

Hyundai Marine Fire Insurance Co., Ltd. (Attorney Kim Jong-Un, Counsel for the defendant-appellant)

Defendant (Attorney Kang Chang-chul, Counsel for defendant-appellant)

Seoul High Court Decision 2016Na2072267 decided June 23, 2017

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

1. As to the legitimacy of the subsequent completion of the case

If a duplicate of the petition of appeal and a writ of summons were served by public notice, and the original copy of the judgment was served to the defendant, who is the appellant, by means of service, by public notice, the defendant shall be deemed to have been unaware of the fact that the appellate procedure was in progress by filing an appeal by the plaintiff, and barring any special circumstance, the defendant may be deemed not to have been aware of the service of the judgment without negligence. In such a case, the defendant falls under a case where the peremptory period was impossible due to a cause not attributable to him/her, and thus, he/she may file a subsequent appeal within two weeks from the date on which such cause ceases to exist (see Supreme Court Decision 2018Da25654, Jun.

According to the records, the plaintiff filed a civil conciliation against the defendant, but the conciliation procedure was conducted but the conciliation was not conducted, and the first instance court served the notice of the date of pleading at the defendant's address, but served it by means of delivery to the defendant, who did not serve the notice of the date of pleading as the defendant's address, and then served the notice of each of the date of pleading and the notice of sentencing on the date of pleading at the time of closure as well as by means of delivery as the notice of each of the date of pleading was not served due to the absence of closure or the addressee's unknown whereabouts. The judgment against the plaintiff was rendered and the original judgment was not served, and the court below served the notice by means of service. The court below sentenced the defendant on June 23, 2017 by means of service and served the notice of the date of pleading at the court below, and delivered the original judgment by service by public notice. After the lapse of the period of appeal against the judgment below, the court below knew the fact that the defendant served on December 21, 2018.

Examining these facts in light of the legal principles as seen earlier, the Defendant was unable to comply with the period of final appeal, which is a peremptory term, due to any cause not attributable to himself. In such a case, the Defendant may subsequently make a subsequent supplement of the final appeal within two weeks from December 21, 2018, which became aware of the fact that the lower judgment was served by public notice. Therefore, the final appeal of this case is lawful.

In such a case, the provision of Article 424 (1) 4 of the Civil Procedure Act can be applied mutatis mutandis to the case where the party was not represented legally. In this regard, the judgment of the court below is an absolute ground for appeal, and this part of the ground for appeal assigning this error is with merit.

2. Conclusion

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 Noh Tae-tae (Presiding Justice)