The case holding that, in the case of a provisional disposition, when a creditor becomes aware of the fact that the lawsuit is in progress by the debtor, the court of first instance presented a document disputing the debtor's argument immediately after the closing of argument, and the court of first instance recommended the creditor to submit an application for resumption of argument outside court by telephone to the creditor, and accordingly the creditor submitted an application for resumption of argument and stated the creditor's address at which time the application for resumption of argument can be served, as long as the creditor submitted an application for resumption of argument at the court of first instance upon the recommendation of the court of first instance, the creditor should resume the pleading, and accordingly, should have been served at the new address as stated in the application for resumption of argument submitted by the creditor, and even if the judgment is scheduled as scheduled, the judgment at least is expected to be served at the new address as presented by the creditor, on the ground that it is reasonable to view that the judgment was served at least at least on the new address submitted by the creditor, and it is difficult to view that it is a reason attributable to him to observe the peremptory period.

In a case of objection against provisional disposition, when a creditor becomes aware of the fact that the lawsuit is in progress by the debtor, the court of first instance presented a document disputing the debtor's argument immediately after the closing of argument, and the court of first instance recommended the creditor to submit an application for resumption of argument outside court by telephone, and accordingly the creditor submitted an application for resumption of argument and stated the creditor's address at which time the application for resumption of argument can be served, as long as the creditor submitted an application for resumption of argument at the court of first instance upon the recommendation of the court of first instance, the creditor must resume the pleading, and accordingly, should have been served at the new address as stated in the application for resumption of argument submitted by the creditor, and even if the judgment was to be served as scheduled, the judgment should be served at least at least at the new address submitted by the creditor, on the ground that it is reasonable to view that the judgment was served at least by the new address as stated in the application for resumption of pleading submitted by the creditor, and it is difficult to view that it is a reason attributable to him or not to observe the peremptory period.

Article 160 of the Civil Procedure Act

Supreme Court Decision 86Meu224 Decided March 10, 1987 (Gong1987, 641) Supreme Court Decision 90Ma606 Decided August 28, 1990 (Gong1990, 2014) Supreme Court Decision 90Da25673 Decided December 21, 1990 (Gong1991, 593) Decided March 22, 1994 (Gong194Sang, 1293)

Creditors

The debtor

Seoul High Court Decision 2000Na9057 delivered on May 17, 2000

The judgment below is reversed and the case is remanded to Seoul High Court.

We examine the grounds of appeal.

1. The judgment of the court below

According to the records, after the provisional disposition order on the real estate of this case was issued by the creditor upon the creditor's application for provisional disposition, the creditor's objection was presented by the debtor, but the service of the creditor is impossible, so the court of first instance rendered a decision of revocation of provisional disposition order on December 2, 199, and the original copy of the judgment on the creditor was served by public notice on December 10 of the same year, and the appeal period was served by public notice on February 3, 200 after the appeal period expired.

In full view of the records and the purport of oral argument of the parties, the court below acknowledged the following facts: (a) the creditor was able to hear from the debtor the fact that the lawsuit in this case is in progress; (b) the creditor submitted an objection to the court of first instance on November 30, 1999; and (c) the court of first instance recommended the creditor to submit an application for resumption of oral argument outside the court; and accordingly, the creditor submitted an application for resumption of oral argument by mail and received it to the court of first instance on December 15:30, 199, the day before the sentencing date; (c) the court of first instance did not deliver the application to the court of first instance by December 2, 1999, the court of first instance without knowledge of the receipt thereof; and (d) the creditor did not know of the fact that he did not know of the fact that the creditor was not guilty of the fact that he did not have been able to bring an objection against the peremptory period of the first instance court; and therefore, (d) the court below determined that the creditor did not know that he did not have been negligent in the judgment.

2. Judgment of the Supreme Court

However, according to the records, when a creditor becomes aware of the fact that the lawsuit in this case is in progress by the debtor, he submitted a document disputing the debtor's argument immediately after the closing of argument in the first instance court. The court of first instance recommended the creditor to submit an application for resumption of argument outside the court of first instance, and accordingly, the creditor submitted an application for resumption of argument to the creditor, and also stated the creditor's address at the time when the application for resumption of argument was made. Thus, if there are circumstances, the creditor submitted an application for resumption of argument at the court of first instance pursuant to the recommendation of the court of first instance, it shall be deemed that the creditor has been expected that the document will resume the pleading and be served at the new address as stated in the application for resumption of argument submitted by the creditor. And even if the judgment is to be declared as scheduled, it shall be deemed that the judgment was sent at least to the new address submitted by the creditor. Furthermore, it shall not be deemed that the creditor's decision whether to actively make the creditor's application for resumption of argument or whether the judgment was pronounced, thereby preventing compliance with the peremptory period.

Therefore, the court below which rejected the appeal of this case on the ground that the failure of the obligee to observe the peremptory period of appeal without examining the lawful requirements for the subsequent appeal of this case is a cause attributable to the obligee, and there is an error of law by misapprehending the legal principles as to the observance of the peremptory period in service by publication and subsequent appeal, which failed to exhaust all the deliberation of this case. The appeal pointing this out has merit.

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices.

Justices Yoon Jae-sik (Presiding Justice)