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 copy, etc. of the judgment in the appellate court by public notice (affirmative)

Article 173 of the Civil Procedure Act

[Plaintiff, Appellant] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Park Jong-soo et al., Counsel for plaintiff-appellant)

Plaintiff Community Credit Cooperatives

Defendant (Law Firm Rolus, Attorneys Kim Jong-myeong et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2006Na30435 decided Feb. 7, 2007

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

1. Whether the subsequent appeal of this case is lawful

If a duplicate of the petition of appeal and the summons on the date of pleading were served by service by public notice, and the original copy of the judgment was served by public notice, the appellee was unaware of the fact that the procedure of the appellate court was in progress, and barring any special circumstance, the appellee was unaware of the service of the judgment without negligence. In such a case, the appellee may make a subsequent completion of the appeal within two weeks (within 30 days if the reason was in a foreign country at the time when the reason ceased to exist) from the date when the reason ceased to exist (see, e.g., Supreme Court Decision 95Da21365, May 30, 1997).

According to the records, the court below delivered a duplicate of the petition of appeal of this case and a writ of summons of the date for pleading by public notice to the defendant, and sentenced the judgment on February 7, 2007, and served the original copy of the judgment by public notice. The defendant also knew of the fact that the judgment below was served by public notice. However, the court below's submission of the letter of appeal of this case to the court below on August 27, 2008, which was within two weeks after the expiration of the period for filing an appeal against the judgment of this case on August 27, 2008, since the judgment of the court below became aware of the fact that the judgment of this case was sentenced to the judgment of this case on August 27, 2008, which was within two weeks after the period for filing an

2. Ex officio determination

The defendant was not aware of the fact that an appeal concerning this case was filed without any cause attributable to the defendant by public notice from the duplicate of the petition of appeal to the service by public notice, and under such circumstances, the date for pleading by the court below without the defendant's appearance, and the defendant's right granted as a party to the procedure was infringed upon. In such a case, it shall be deemed that Article 424 (1) 4 of the Civil Procedure Act can be applied by analogy to the case where the party was not duly represented by an agent. In this regard, the judgment of the court below is unlawful and thus

3. Conclusion

Therefore, without further proceeding to decide on the Defendant’s grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Cha Han-sung (Presiding Justice)