[1] The meaning of "a case where the place of delivery for delivery is not known" as the requirements for delivery by registered mail under Article 185 (2) of the Civil Procedure Act

[2] The case holding that the above service is not effective on the ground that it is unlawful for the defendant company to serve the document as another service place that was sent by registered mail to the above address on the ground that, in case where the document was sent to the representative director's address of the defendant company several times and the service of the document was impossible due to the director's unknown whereabouts, and the document of the remaining lawsuit was sent to the above address by registered mail to the above address, in light of the fact that the document of lawsuit was sent to the defendant company as the service place of the defendant company in addition to the registration address of the defendant company as the service place of the defendant company, and the document

[1] Article 185 of the Civil Procedure Act, Article 51 of the Rules of Civil Procedure / [2] Article 185 of the Civil Procedure Act, Article 51 of the Rules of Civil Procedure

[1] Supreme Court Decision 2001Da31592 Decided August 24, 2001 (Gong2001Ha, 2071) Supreme Court Decision 2004Da11988 Decided October 15, 2004 (Gong2004Ha, 1825) Supreme Court Decision 2005Ma625 Decided September 28, 2005

A. E.N. Media Group (Law Firm Tae & Yang, Attorneys Cheong-jin et al., Counsel for the plaintiff-appellant-appellant)

Seoul Western District Court Order 2010Na8574 dated November 18, 2010

The order of the court below is reversed, and the case is remanded to the Seoul Western District Court Panel Division.

The grounds of reappeal are examined.

1. The record reveals the following facts.

A. On July 29, 2009, the Plaintiff filed a lawsuit against the Defendant (re-appellant) with Seoul Central District Court 2009Da282066, which sought the return of the investment amount, etc. (the case was transferred on August 12, 2009 to the Seoul Western District Court) (the Seoul Western District Court 2009Da55788), and the first instance court served documents, such as a copy of the complaint, on the domicile of the Defendant’s representative director Nonparty 1 (the address of this case hereinafter “instant address”). Nonparty 2 received this on October 19, 2009, the Defendant’s representative director Nonparty 1’s spouse (the same person).

B. Even thereafter, the first instance court served a notice of the date of pronouncement (non-drawing) at the instant address, notice of the date of pleading (i.e., January 15, 2010), and a copy of the written response of the order of correction. Likewise, Nonparty 2, the spouse of the Defendant representative director received the said documents on November 27, 2009 and December 22, 2009.

C. However, the first instance court served a written notice of the date of pleading (as of January 29, 2010 and March 5, 2010), a written application for correction of the cause of the claim, a written notification of the changed date (as of February 12, 2010), a notice of the sentencing date (as of March 19, 2010), etc. However, when it was impossible to serve the said litigation documents by registered mail from January 19, 2010 to the address of this case.

D. On March 5, 2010, the first instance court closed the pleadings, and sentenced the Plaintiff’s winning judgment on March 19, 2010. On March 19, 2010, the Defendant served the original copy of the judgment to the instant address. However, as a director’s unknown, the said original copy of the judgment was served by public notice on March 31, 2010, and the service by public notice became effective on April 15, 2010.

E. Meanwhile, around October 13, 2010 after the lapse of the appeal period, the Defendant became aware of the judgment of the court of first instance immediately after the execution of corporeal movables in the office of the Defendant, and submitted the instant written appeal to the court of first instance on October 26, 2010, which is within two weeks from the judgment.

2. The court below issued an order to dismiss the petition of this case submitted after the lapse of the appeal period on the ground that the defendant's receipt of litigation documents, such as a duplicate of the complaint, was well known that the above litigation procedures are pending and being pending in the court. Thus, unlike the case where the documents of this case were served by means of service by public notice because it was impossible to serve the original copy of the complaint, it erred by neglecting this in spite of his duty to investigate the progress and result of the lawsuit, and it cannot be viewed as a case where the period cannot be observed due to a cause not attributable to

3. However, it is difficult to accept the above judgment of the court below in the following respect.

Article 185(1) of the Civil Procedure Act provides that "if a party, legal representative, or attorney has altered the place where a service is to be made, the purport thereof shall be immediately reported to the court." Paragraph (2) of the same Article provides that "in case where the place where service is to be made to a person who has not reported under paragraph (1) is unknown, the document may be sent to the previous place where service is to be made, as prescribed by the Supreme Court Regulations," and Article 51 of the Rules of Civil Procedure provides that "in case where the place where service is to be made is to be made by registered mail, the delivery of the document pursuant to Article 185(2) of the Civil Procedure Act shall be made by registered mail." Article 185(2) of the Civil Procedure Act provides that "in case where the place where service is to be made by registered mail is unknown" means that the other party may be made by order to correct his address or ex officio investigation of the resident registration record card, etc., but at least the place where service is to be made by registered mail, it shall be made (see Supreme Court Decisions 2000Da21294.284.2005Da54.

According to the records, the plaintiff stated in the complaint of this case as the service place for the defendant in addition to the defendant's registry address as well as the defendant's address on the contract, "Seoul-dong 269-10 (hereinafter address 2 omitted)" separately, and the above address is also stated in the performance contract between the plaintiff and the defendant as it is, as well as in the application form for correction of the plaintiff's claim on January 18, 2010. The defendant's head office is changed to the "Seoul-dong 1196 "Seoul-dong 269-10 (hereinafter address 4 omitted)" on September 29, 2009 to the "Seoul-dong 269-10 (hereinafter address 4 omitted), the defendant's Seoul-dong 269-dong Da-dong 2010 (hereinafter address 4 omitted)'s delivery of the registered document of this case to the defendant's address on the 20th 19th 2nd 19.

Therefore, it is difficult to view that the Defendant, who was not lawfully served the notice of the date of pleading and the notice of the date of sentencing after January 19, 2010, was unable to observe the peremptory period due to the failure to promptly identify the progress of the trial after several months from the Defendant, as a cause attributable to him/her.

Nevertheless, the court below's order which rejected the appeal of this case on the ground that the failure of the defendant to observe the peremptory period of appeal of this case was attributable to the defendant was erroneous in misapprehending the legal principles as to the observance of the peremptory period in delivery and subsequent completion appeal, or failing to exhaust all necessary deliberations, which affected the conclusion of the judgment.

4. Therefore, the order of the court below is reversed, and the case is remanded to the court below 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)