beta
Text
1. Revocation of the first instance judgment.
2. The plaintiff's claim is dismissed.
3. The total cost of a lawsuit shall be borne individually by each party.
Reasons
1. On April 6, 2018, the Plaintiff filed an application against the Defendant for provisional injunction against the transfer of real estate possession (hereinafter “provisional injunction”) by Busan District Court Branch Branching 2018Kadan577, and the Defendant filed an application for perusal and reproduction of the said provisional injunction on May 11, 2018. It is reasonable to deem that the Defendant was aware of the receipt of the instant complaint at that time. Accordingly, the Defendant asserts that the subsequent appeal filed two weeks thereafter is unlawful.
Article 173(1) of the Civil Procedure Act provides, “If a party is unable to comply with a peremptory term due to any cause not attributable to him/her, he/she may supplement the procedural acts in which he/she neglected within two weeks from the date such cause ceases to exist.” In this context, the term “reasons not attributable to the party” means the reasons why the party was unable to observe the period even though he/she performed the duty of due care to conduct procedural acts, even though he/she
However, in a case where the original judgment was served on the Defendant by public notice, barring any special circumstance, the Defendant shall be deemed to have failed to know the service of the judgment without fault. If the Defendant was sentenced from the beginning without knowing the continuation of a lawsuit and the Defendant became aware of such fact only after the original judgment was served to the Defendant by public notice, barring any special circumstance, it shall be deemed that the Defendant’s failure to observe the peremptory period for filing an appeal due to any cause not attributable to the Defendant.
(see, e.g., Supreme Court Decision 2005Da27195, Nov. 10, 2005). According to the records of this case, the duplicate of the complaint of this case was served on April 25, 2018, and on May 15, 2018, but it was served on the Defendant on July 7, 2018, inasmuch as it was not served due to the absence of a closed text.