effect of service by public notice on the absentee principal appointed by the administrator

If an administrator of an absentee is appointed, only the administrator may conduct procedural acts such as service on behalf of the absentee and only the administrator may conduct procedural acts such as service on behalf of the absentee. Even if the court decides to serve by public notice on absentee, this cannot be deemed a lawful service. Thus, service by public notice on the absentee principal does not take effect as service by public notice on judgment, and therefore, the administrator may file an appeal at any time regardless of when he knows the fact of service by public notice.

Articles 22 and 25 of the Civil Act, Articles 179 and 366 of the Civil Procedure Act

65Da853 delivered on July 6, 1967 (Article 366(2)974 of the Civil Procedure Act), 68Da2021 delivered on December 24, 1968 (Article 25(16)31 of the Civil Act, Article 25(16) of the Civil Act, Article 25(16)321 of the Civil Act, Article 79Da239 delivered on May 22, 197 (Article 186(2)(67), Article 12145 of the Civil Act, Article 27B9 of the Civil Procedure Act, Article 613-1982)

Plaintiff

Democratic Republic of Korea

Seoul Central District Court (82 Gohap5364) in the first instance trial

The original judgment shall be revoked.

The plaintiff's claim is dismissed.

All the costs of lawsuit shall be borne by the plaintiff in the first and second instances.

The defendant shall implement the registration procedure for transfer of ownership rights based on sale on July 9, 197 with respect to the share of 9/30 of each of the real estate stated in the attached list to the plaintiff.

Litigation costs shall be borne by the defendant.

The same shall apply to the order.

(1) Whether the appeal is lawful

The plaintiff's legal representative is an illegal appeal filed by the defendant with an exception to the peremptory period, and even though the above appeal period has lapsed because the defendant's administrator was unaware of the delivery of the original judgment due to a cause not attributable to the defendant's administrator, the defendant's administrator filed a petition for a retrial on August 31, 1984 on the premise that the original judgment became final and conclusive, and withdraws it, and has reached the appeal in this case on December 14 of the same year. The defendant's administrator was aware of the delivery of the original judgment at least at the time of the above request for retrial, and therefore the subsequent completion of the appeal is allowed only within the two weeks from that time. Since the defendant's administrator filed an appeal after the expiration of the above subsequent completion period, the defendant's legal representative raised an appeal, the appeal in this case must be dismissed as an illegal appeal.

In light of the above facts, since the original judgment was rendered on March 29, 1983 and the original judgment was delivered to the defendant by public notice on April 7 of the same year (Therefore, the period of appeal in this case took place on April 22 of the same year and expired on May 6 of the same year) and the facts that the administrator of the defendant's estate was brought on December 14, 198 after the expiration of the above period of appeal, there were significant evidence No. 2, No. 3-1, No. 3-5 (Statement of Opinion), and No. 6-5 (Protocol of Statement), and the defendant's appeal was delivered to the Seoul High Court on the premise that the above facts were not established by public notice. Thus, the court below's decision against the defendant's administrator of the defendant's property by public notice cannot be accepted as an administrator of the defendant's estate property by public notice, and the defendant's legal representative was appointed as an administrator of the defendant's property at the first instance court's judgment on May 21, 1979.

(2) Whether it goes against the res judicata

The plaintiff's claim for the transfer of the above real estate was filed on May 5, 1968 by the deceased non-party 2 and his name succeeded to the above non-party 1. The non-party 3 purchased the shares of the defendant among the above real estate on August 8, 1968 (the plaintiff was indicated as the sales contract dated May 27, 1971 with the non-party 1 and the non-party 2, but it was stated as the non-party 9's claim for the transfer of the above real estate on March 8, 1983 that the non-party 1 and the non-party 9's claim for the transfer of the above real estate were non-party 1 and the non-party 6's claim for the transfer of the above real estate on the condition that the non-party 1 and the non-party 3 were not the non-party 9's claim for the transfer of ownership on the non-party 1 and the non-party 3's claim for transfer of ownership on the non-party 1.

3. Conclusion

Therefore, the plaintiff's claim of this case is to be dismissed because it goes against the res judicata of the final and conclusive judgment. However, since the original judgment is unfair with different conclusions, the defendant's appeal is accepted, and the plaintiff's claim is revoked, and the costs of lawsuit are to be assessed against the plaintiff who lost all the first and second trials.

Judges Kim Hun-Un (Presiding Judge)