(영문) 부산가정법원 2018.11.8.선고 2017르21231 판결

[Claim] The defendant shall pay 00 and 500,000 won to each plaintiff and 50,000 won with 5% interest per annum from the day following the delivery of the copy of the complaint of this case to the day of this judgment and 15% interest per annum from the following day to the day of complete payment.

[Purpose of appeal] The part against the defendant in the judgment of the court of first instance is revoked, and the plaintiff's claim corresponding to that part is dismissed.

Reasons

1. Determination on the legitimacy of an appeal for subsequent completion

A. The defendant's assertion

The Defendant asserts that the instant restaurant, which was entered in the Defendant’s domicile, is not the Defendant’s resident registration address, but the Defendant did not work as the instant restaurant from January 28, 2017 to January 28, 2017, that the right 00 or restaurant employee received the copy, amendment, etc. of the complaint of this case and sent a reply to the Defendant instead of the Defendant, and that the original copy of the judgment of the first instance court was served by service by public notice, and caused the Defendant’s failure to know the fact of the judgment. Therefore, the Defendant’s failure to observe the appeal period due to a cause not attributable to the Defendant, thereby

(b) Relevant legal principles;

Article 173(1) of the Civil Procedure Act provides that "a cause for which a party cannot be held responsible" refers to a cause for which a party is unable to comply with the period even though he/she has exercised a general duty to act in the course of his/her litigation. Thus, where the service of documents related to a lawsuit was impossible as a result of the impossibility of being served in the course of the lawsuit by public notice, it is different from the case by public notice from that in which the lawsuit was served in the course of the lawsuit by public notice, and thus the party is obligated to investigate the progress of the lawsuit from the beginning. Thus, if the party did not know the progress of the lawsuit before the court, it shall not be deemed that there was no negligence. Further, such obligation is borne, regardless of whether the party was present at the date for pleading, whether he/she was notified of the date for pleading after the date for pleading, or whether he/she was appointed as an attorney at the date for pleading after the date for pleading (see Supreme Court Decisions 2004Da16082, Jul. 22, 2004>

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

1) The Plaintiff filed the instant lawsuit on March 6, 2017, and indicated the Defendant’s address as the instant restaurant that the Defendant operated.

2) On March 16, 2017, the Defendant directly received the duplicate of the instant complaint and documents related to the lawsuit at the instant restaurant. On March 20, 2017, the Plaintiff directly received the Plaintiff’s written amendment on March 24, 2017, and on April 24, 2017, the instant restaurant submitted a written answer stating it as the address.

3) Although the court of first instance tried to serve a writ of summons on the Defendant on April 28, 2017, it became impossible to serve the writ of summons on the date of pleading, and on May 8, 2017, sent the writ of summons on the date of pleading on May 8, 2017. The respondent was absent on the date of pleading on May 25, 2017.

4) On May 23, 2017, the Plaintiff’s preparatory brief was impossible to be served due to the absence of closure on May 30, 2017, and the summons of the date for pleading became impossible to be served due to the absence of closure on May 31, 2017. Accordingly, the court of first instance sent the writ of summons of the date for pleading on June 7, 2017, and sent the briefs issued on May 23, 2017 to the Defendant on June 8, 2017. The Defendant was absent on June 222, 2017, and the notification of the judgment on the Defendant became impossible to be served on July 3, 2017 due to the absence of closure on June 28, 2017.

5) On July 20, 2017, the court of first instance sentenced the Plaintiff to a partial winning judgment, and intended to serve the original copy of the said judgment on August 8, 2017, but became impossible to serve due to the absence of closure, and served the original copy of the judgment on September 7, 2017.

6) On November 13, 2017, approximately two months after the Defendant submitted a written appeal for subsequent completion.

D. Determination

As such, the Defendant appears to have been aware of the fact that the lawsuit in this case was pending since the Defendant was served with a duplicate of the complaint in this case and submitted a reply. Therefore, when the Defendant had a duty to investigate the progress of the lawsuit, and when the delivery place is changed pursuant to Article 185(1) of the Civil Procedure Act, it was negligent by failing to investigate the progress of the lawsuit even though it had a duty to report to the court, and failing to report the change of address to the legal branch. Therefore, it is difficult to deem that the grounds alleged by the Defendant alone were insufficient

Therefore, the appeal of this case is unlawful because it was filed after the expiration of the appeal period, and it does not meet the requirements for subsequent completion.

2. Conclusion

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