(영문) 창원지방법원 2017.11.28 2017나53481

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(영문) 창원지방법원 2017.11.28 2017나53481

부당이득금

Text

1. The defendant's appeal is dismissed.

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

Purport of claim and appeal

1..

Reasons

1. Determination on the legitimacy of a subsequent appeal

(a) The following facts, of the recognition, are apparent in, or obvious to, a record:

1) On May 16, 2016, the Plaintiff filed the instant lawsuit against the Defendant. On August 29, 2016, the Defendant’s spouse was served with a duplicate, etc. of the instant complaint at the Defendant’s domicile, and on September 12, 2016, the answer in the name of the Defendant was submitted to the first instance court on September 12, 2016. (2) The first instance court served the Defendant’s notice of the date of pleading and the date of sentencing on each of the first and second occasions as the Defendant’s domicile, but was not served due to the absence of the text, and the first instance court served each of the above documents.

3) On February 7, 2017, the first instance court rendered a judgment in favor of the Plaintiff on the date of rendering a judgment, and intended to serve the original of the judgment to the Defendant, but was not served due to the absence of closure, and served the original of the judgment on February 27, 2017, and became effective on March 14, 2017. The first instance court was treated as having become final and conclusive on March 28, 2017. (iv) The Defendant submitted the instant final appeal to the first instance court on May 2, 2017.

B. Article 173(1) of the Civil Procedure Act provides, “Any reason for which a party cannot be held liable” refers to a reason for failure to comply with the period, even though the party fulfilled generally required care for conducting the said litigation. In a case where documents of lawsuit cannot be served by means of ordinary means during the process of litigation and served by public notice, the documents of lawsuit cannot be served by means of public notice, the parties are obligated to investigate the progress of the lawsuit from the first delivery of a copy of the complaint to the case where the lawsuit was served by public notice. Thus, if a party fails to investigate the progress of the lawsuit and fails to abide by the peremptory period, it cannot be said that the parties are attributable to any reason

Supreme Court Decision 2012Da44730 Decided October 11, 2012

참조조문

-민사소송법 제173조 제1항

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