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(영문) 서울고등법원 2019.10.23 2018나10656
대여금
Text

1. Of the judgment of the court of first instance, the part against the defendant exceeding the following amount ordered to be paid shall be revoked.

Reasons

Article 173(1) of the Civil Procedure Act provides, “If a party is unable to comply with the peremptory period due to any cause not attributable to him/her, he/she may supplement the litigation by neglecting his/her duty within two weeks from the date on which such cause ceases to exist, and if the original copy, etc. of the complaint are served by public notice, barring any special circumstance, the defendant was unable to be served without negligence. In such cases, the defendant falls under the case where the defendant was unable to comply with the peremptory period due to such cause not attributable to him/her and falls under the case where the defendant was unable to comply with the peremptory period, and thus, he/she may file a subsequent appeal within two weeks (30 days if the 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 any other 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 the original

(2) In light of the aforementioned legal principles, the court below’s decision to dismiss the Plaintiff’s claim on October 2, 2008 (see, e.g., Supreme Court Decision 2010Da75044, 75051, Jan. 10, 2013). The Defendant filed an appeal for the instant case on November 13, 2018 after receiving the written notice of the first instance court’s judgment, and the first instance court served the Defendant with a notice of the date of pleading and the date of pleading by public notice, and the Plaintiff’s decision to accept the Plaintiff’s claim on October 2, 2008. The original copy of the judgment also served on the Defendant by public notice, and the service took effect on October 15, 2008, and thereafter, the fact that the Defendant filed an appeal for the subsequent completion

According to the above facts of recognition, the defendant cannot be held liable.

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