The case holding that delivery of documents to the spouse of a person to receive service at a different place from the designated place of service by the mailman is not a lawful supplementary service as prescribed in Article 186 (1) of the Civil Procedure Act.

The case holding that the delivery of documents is not a lawful supplementary service under Article 186 (1) of the Civil Procedure Act, because the mailman in charge of the service of service is a new residence of a person who will receive service at a different place, even though the assistant clerk, who is an agency in charge of service, requested and instructed the service of service by designating the service place.

Article 186(1) of the Civil Procedure Act

Plaintiff

Defendant corporation

Busan District Court Order 2007Gahap7136 dated August 7, 2008

The decision of the first instance shall be revoked.

1. Basic facts

The record reveals the following facts:

A. The Plaintiff filed a lawsuit against the Defendant, 1, 2, and 3 claiming construction cost, taking into account the following facts: “The Plaintiff is a contractor, and Nonparty 1 is a joint and several surety, and Nonparty 2 and 3 agree to pay the unpaid construction cost at the time of April 6, 2006, with the payment of KRW 150,500,000,000,000, which was unpaid as of August 30, 2005 to February 25, 2006, as Nonparty 1, 2, and 3 is jointly and severally liable to pay the remaining construction cost of KRW 125,00,000,000,000, which was unpaid as of April 16, 2007 and damages for delay.”

B. On July 15, 2008, when the lawsuit was pending, the defendant rendered a compulsory mediation decision with the main contents that "the defendant shall pay 80 million won to the plaintiff by the end of December 2008." The defendant's joint representative director, who is the address of the non-party 4, was served with the service of the original copy in Eunpyeong-dong Seoul (number 1 omitted). On July 22, 2008, the notice was given to the court. The notice was given to the non-party 5, who is the non-party 4 living together (spouse) on July 22, 2008.

C. On the decision of compulsory adjustment, the Plaintiff did not submit a written objection, and the Defendant submitted a written objection on August 6, 2008.

D. Accordingly, the first instance court rendered a decision of the first instance court of this case that dismissed an objection on the ground that the Defendant’s original copy of the compulsory adjustment decision was served on July 22, 2008, and on August 5, 2008, 2008, an objection period of two weeks has expired, and thus, the Defendant’s objection filed on August 6, 2008 was unlawful.

2. Grounds for appeal;

The defendant asserts that since the original copy of the compulsory adjustment decision was delivered to the representative's spouse at a place other than the address of the representative of the defendant, the original copy of the compulsory adjustment decision is unlawful.

3. Determination

A. Facts of recognition

In addition to the result of the fact-finding on the building permit, construction site photograph, and Seoul, which the appellant submitted in the record of the first instance court, the assistant court clerk, who is the person in charge of the delivery affairs of the first instance court, determined the defendant's joint representative director non-party 4's address from June 4, 2007 as the service place and implemented the service as the service place. On July 15, 2008, the original copy of the compulsory adjustment decision as of July 15, 2008, the service of the same place as the service place, was conducted. ② Meanwhile, from May 22, 2008, the construction of the apartment house was being removed and the new construction of the apartment house was conducted. ③ It is recognized that the mail clerk, who was the person in charge of the delivery affairs of the first instance court, issued the original copy of the compulsory adjustment decision to the non-party 5, who was the non-party 208's spouse's non-party 208.

(b) Method of service by the service agency;

Service is intended to ensure stability and certainty by prescribing the method and procedure of the Civil Procedure Act by an official act conducted by the court based on its jurisdiction. As long as service is served in accordance with the procedure and method prescribed by the Civil Procedure Act, regardless of whether the person receiving service was actually aware of the content of the service, the service shall be void in principle, if it is in violation of such procedure and method.

The Civil Procedure Act designates a junior administrative officer, etc. (the court administrative officer, junior administrative officer, chief clerk, senior clerk, etc.) as “service processing agency,” and determines the time of service ( Sundays, holidays, etc.), place of service, etc., and requires the mailman or execution officer to take charge of the service of documents, etc., while designating a mailman or execution officer, etc. as “service agency,” and allowing him/her to take charge of the service of documents as requested and instructed.

In principle, a mailman, etc., who is the agency responsible for delivering documents, may deliver documents to a person to be served at a place of service designated by a Junior Administrative Officer, etc. (Article 178, delivery), or, if a person to be served at such place is not present at such place, may be served by delivering documents to his/her office worker, employee, or cohabitant, who is man of sense (Article 186 (1), supplementary service), or a person to be served on behalf of the person to be served with documents, or a person to be served on behalf of the document refuses to serve documents without justifiable grounds, such documents may be served at the designated place of service (Article 186 (3), delivery, etc.).

C. Whether the original copy of the compulsory adjustment decision is lawful and delivered

As above, although the senior clerk, who is the agency in charge of the service of the first instance court, designated the "Seoul Eunpyeong-dong (Road Number 1 omitted)" as the service place of the defendant and requested and instructed the mailman, who is the agency in charge of service, to conduct the service, the mailman in charge of the service of the first instance court, issued the original copy of the compulsory adjustment decision to the non-party 5, who is the non-party 4's spouse, not the designated service place.

However, it is difficult to find out that the person who was served on the Siamam-dong (number 2 omitted) is the domicile or residence of Nonparty 4, and even if so, it is not the designated place of service, and as such, it cannot be deemed that it constitutes a supplementary service under Article 186(1) of the Civil Procedure Act, on the ground that the document was delivered to Nonparty 5, who is the spouse of Nonparty 4, at that place.

Therefore, the original copy of the decision of the court of first instance cannot be deemed to have been delivered lawfully, and the objection filed by the defendant is made before the original copy of the decision of compulsory adjustment is served.

4. Conclusion

If so, the decision of the first instance that the defendant decided that the objection raised by the defendant should expire after the period for objection expires, is unlawful, and thus the decision of the first instance is revoked.

Judges Lee Young-young (Presiding Judge)