The case holding that the judgment of the court below which dismissed the claim on the ground that there was no evidence to acknowledge it without questioning the issue that was not a issue and there was an error of law in the exercise of right to explanation or incomplete hearing.

In a case where only the parties dispute the delivery of the decision and there was no explicit dispute as to the service of the decision of correction until the closing of argument in the court below, the dismissal of the claim on the ground that the service of the decision of correction was not recognized only by the evidence submitted by the plaintiff without awareness of the request is not sufficient to the plaintiff due to a judgment other than an estimate based on the legal point of view that the parties could not have anticipated at all, but also by failing to properly examine whether the decision of correction was delivered to the defendant, which affected the conclusion of the judgment.

Article 126(4) of the Civil Procedure Act

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

Plaintiff

Defendant

Incheon District Court Decision 93Na3660 delivered on December 31, 1993

The judgment below is reversed, and the case is remanded to Incheon District Court Panel Division.

We examine the grounds of appeal.

According to the reasoning of the judgment below, the court below rejected the plaintiff's claim on the ground that the above decision of correction was delivered to the defendant on February 15, 1992 when the seizure and collection order of the plaintiff's claim of this case (hereinafter referred to as the "decision of this case") was rendered on February 15, 192 and delivered to the third debtor on August 27 of the same month, and that the third debtor indication of the above decision was decided on August 27 of the same year from "○○" to "the defendant", but there is no evidence to deem that the above decision of correction was delivered to the defendant, and therefore, the above seizure

In light of the records, we affirm the judgment of the court below that there is no proof that the above decision of correction was served on the defendant. On the other hand, the defendant did not receive the service of the decision of this case in the court of first instance, and the third debtor indication is different from the name of the defendant, but the decision of this case was served on the defendant and the third debtor indication was recognized as the decision of correction was made in the name of the defendant. In the court of second instance, there was no mentioning about the decision of this case and the delivery of the decision of correction was made in the court of second instance. Accordingly, although the plaintiff had served the decision of this case since the court of first instance and received the decision of correction due to the error of the third debtor indication, it did not clearly assert and prove whether the above decision of correction was served on the defendant, and there was no assertion or proof as to whether the above decision of correction was served on the defendant.

If so, until the closing of argument in the court below, only the parties dealt with the decision of this case and there was no express dispute as to whether the above decision of this case was served, and therefore, the plaintiff also submitted evidence that the decision of this case was served. Thus, the court below should ask the plaintiff about whether the decision of this case was served with respect to the service relation of the decision of this case between the parties, and urge the plaintiff to ask for an explanation and prove (see Article 126(4) of the Civil Procedure Act). However, the court below dismissed the plaintiff's claim on the ground that the plaintiff's evidence submitted by the plaintiff without awareness of it is not recognized as a service relation of the above decision of this case. This is not only a judgment other than an estimate based on the legal point of view that the parties could not have anticipated at all, but also a proper deliberation as to whether the above decision of correction was served with the defendant, which affected the conclusion of the judgment. The grounds for this point are justified.

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices.

Justices Yoon Young-young (Presiding Justice)