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대구지방법원 2016.08.11 2015나17577

물품대금

Text

1. Of the judgment of the court of first instance, the part against the defendant in excess of the amount ordered to be paid below shall be cancelled.

Reasons

1. If a copy of a complaint, an original copy, etc. of the judgment were served by means of service by public notice, barring any special circumstance, the defendant was unaware of the service of the judgment without negligence, and in such a case, the defendant is deemed unable to comply with the peremptory period due to a cause not attributable to him/her and thus, he/she is entitled to file an appeal for subsequent completion within two weeks after such cause ceases to exist.

Here, the term “after the cause has ceased” refers to the time when a party or legal representative becomes aware of the fact that the judgment was delivered by public notice, instead of simply knowing the fact that the said judgment was delivered by public notice. Barring special circumstances, it shall be deemed that the party or legal representative becomes aware of the fact that the judgment was served by public notice only when the party or legal representative inspected the records of the case or received a new original of the judgment.

(See Supreme Court Decision 2004Da8005 Decided February 24, 2006. According to the records of this case, the court of first instance shall serve the defendant by means of service, such as a duplicate of the complaint against the defendant, a notice of the date of pleading, etc., and shall serve the defendant by means of service, and shall render a judgment accepting the plaintiff's claim on August 21, 2013 after the oral pleadings are in progress, and the original copy of the judgment may also be recognized as served on the defendant by means of service by public notice on August 24,

Unless any evidence exists to deem that the Defendant himself/herself or his/her attorney had already known the fact that the judgment of the first instance was rendered and that such judgment was served by means of service by public notice, it is reasonable to deem that the Defendant could not observe the period of appeal, which is a peremptory term, by failing to know the progress and outcome of the instant lawsuit due to a cause not attributable to himself/herself, even though he/she was unaware of the fact that the judgment of the first instance was served by public notice.

As to this, the plaintiff was not intentionally served by the defendant with respect to the first instance trial.