Whether a subsequent appeal is allowed in cases where the appellate court had different knowledge about the continuation of the lawsuit due to service by public notice (affirmative)

Article 173 of the Civil Procedure Act

[Plaintiff, Appellant] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Park Jong-soo et al., Counsel for plaintiff-appellant)

Plaintiff

Defendant

Suwon District Court Decision 2009Na4924 decided January 28, 2010

The judgment of the court below is reversed, and the case is remanded to the District Court Panel Division.

1. Whether the subsequent appeal of this case is lawful

If a duplicate of the petition of appeal and the summons on the date of pleading were served by service by public notice, and the original copy of the judgment was served by public notice, the appellee was unaware of the fact that the procedure of the appellate court was in progress, and barring any special circumstance, the appellee was unaware of the service of the judgment without negligence. In such a case, the appellee may make a subsequent completion of the appeal within two weeks (within 30 days if the reason was in a foreign country at the time when the reason ceased to exist) from the date when the reason ceased to exist (see, e.g., Supreme Court Decision 95Da21365, May 30, 1997).

According to the records, the court below served the plaintiff with a copy of the petition of this case and a writ of summons of the date for pleading by public notice, and served the judgment on January 28, 201 and the original copy thereof by public notice. The court below also accepted the original copy of the judgment of this case on October 31, 201, after the period for filing an appeal against the judgment of this case was expired, and submitted it to the court below on November 8, 201, not more than two weeks thereafter. Thus, the plaintiff's appeal of this case is lawful because it falls under the case where the plaintiff is unable to comply with the period for filing an appeal, which is the peremptory period, due to any cause not attributable to him.

2. Ex officio determination

The plaintiff was not aware of the fact that the appeal concerning this case was filed without any cause attributable to the plaintiff by public notice from the duplicate of the petition of appeal to the service by public notice. In this situation, the date for pleading by the court below without the plaintiff's attendance and the plaintiff's right granted as a party to the procedure was infringed upon. In such a case, the plaintiff can be applied by analogy of Article 424 (1) 4 of the Civil Procedure Act in view of the same case as the case where the party was not duly represented by an agent. Therefore, the judgment of the court below was

3. Conclusion

Therefore, without further proceeding to decide on the Plaintiff’s grounds of appeal, 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 on the bench.

Justices Park Poe-dae (Presiding Justice)