Sexual Iron Co., Ltd.

Defendant

Suwon District Court Decision 2009 Ghana24988 Decided December 23, 2009

July 7, 2020

1. The defendant's appeal is dismissed.

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

1. Purport of claim

The defendant shall pay to the plaintiff 7 million won with 20% interest per annum from December 3, 2009 to the day of complete payment.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Determination on the legitimacy of a subsequent appeal

(a) Facts of recognition;

The following facts are apparent in the records or obvious to this court:

1) On August 13, 2009, the Plaintiff filed a lawsuit against the Defendant seeking the payment of goods. On November 17, 2009, the first instance court ordered the Defendant to serve by public notice on November 17, 2009, inasmuch as the written complaint, the written guide of lawsuit, etc. against the Defendant is not served due to the unknown director or the absence of a closed door, etc., and served the Defendant with a duplicate of the complaint and the written guide of lawsuit in the manner of service by public notice. On December 1, 2009, the first instance court served the Defendant with a notice of the date of pleading by

2) On December 23, 2009, the first instance court rendered a judgment in favor of the Plaintiff, and on January 6, 2010, the original copy of the judgment was served by public notice.

3) On June 26, 2019, the Plaintiff filed an application for the seizure and collection order of the claim (hereinafter “instant claim seizure and collection order”) with the Suwon District Court 2019TT No. 9800, Jun. 26, 2019, with the enforcement title of the judgment of the first instance.

4) On July 2, 2019, the Defendant was seized on the account at the request of the Geumwon District Court from one of the third debtors of the instant claim seizure and collection order. The case number was 2019TWU 9800, and the creditor was issued a text message stating “The Sungdong Industries Co., Ltd., Ltd., and the court telephone number: 03121214.”

5) On September 17, 2019, the Defendant filed a request for perusal and duplication concerning the seizure and collection order of the instant claim, and issued the instant order of seizure and collection, and issued a written judgment of the first instance on September 30, 2019.

6) On October 1, 2019, the Defendant submitted the instant written appeal for the subsequent completion to the first instance court.

B. Determination

In order to recognize an appeal for subsequent completion under Article 173 of the Civil Procedure Act as lawful, the parties could not be able to observe the peremptory period of the appeal due to a cause not attributable to them, and an appeal which was neglected within two weeks after the cause ceases to exist. The term "when the cause ceases to exist" under Article 173 of the Civil Procedure Act in the case where the first instance judgment was served by service of public notice means the time when the defendant was not simply aware of the fact that the judgment was served by public notice, but the fact that the judgment was served by public notice was served by public notice. In ordinary cases, it shall be deemed that the defendant knew of the fact that the judgment was served by public notice only when the defendant was perused the records of the case or received a new authentic copy of the judgment by public notice. However, if it is deemed that the defendant was aware of the fact that the judgment had been served by public notice and there were special circumstances to recognize the fact that the judgment was served by public notice, and it shall be deemed that the cause not attributable to him has ceased (see, e.g., Supreme Court Decision 93Da35335, Apr. 35, 19993).

On July 2, 2019, the defendant was aware of the fact that he was the debtor through the notification of the seizure and collection order of this case issued by the third debtor's credit union with the judgment of the court of first instance as executive title on July 2, 2019. Thus, it is natural that he was aware of the process of the first instance lawsuit and the process of rendering the judgment at least around that time, and it is reasonable to view that the reason for not responsible ceases to exist because it was confirmed that the court of first instance became aware of the fact that the court of first instance was served by service by public notice after the lapse of about two weeks from the time when the grounds for not responsible were extinguished. In the end, the defendant submitted the appeal of this case on October 1, 2019 after the lapse of the period for appeal of this case, which is more than two weeks after the expiration of the period for appeal of this case, and eventually, the completion of the appeal of this case cannot be deemed to constitute a case where the defendant was unable to file an appeal due to any cause not attributable to the defendant.

2. Conclusion

Therefore, the defendant's appeal is unlawful, so it is decided to dismiss it as per Disposition.

Judges Kang Tae-hun (Presiding Judge) (Presiding Judge)