Whether a judgment of nullification is a ground for dissatisfaction under Article 461(2)1 of the Civil Procedure Act in cases where a judgment of nullification has been obtained by filing a request for a public summons on the grounds that the deed was embezzled or stolen (negative)

The stolen or lost deed, which is one of the objects of a public summons for the declaration of invalidation of a deed under Article 463(1) of the Civil Procedure Act, is an example of the case where the deed is lost without being the direct possessor of the deed. Thus, in a public summons for the declaration of invalidation of a deed, where it is obvious that the deed was embezzled or stolen by means of the statement on the application form for public summons, if the court made a judgment of nullification by taking the procedure for public summons, then it constitutes a case where the court did not mislead the fact that the deed was stolen or lost in individual procedure, but it does not mean that the deed was stolen or lost, but it does not constitute a case where the legal procedure for public summons under Article 461(2)1 of the Civil Procedure Act is not permitted.

Articles 461(2) and 463(1) of the Civil Procedure Act

Supreme Court Decision 70Da989 Delivered on July 24, 1970, 73Da1630 Delivered on April 9, 1974, and 80Da1731 Delivered on October 14, 1980

Kim Jong-deok

Attorney Park Jae-chul, Counsel for the defendant-appellant

Seoul Civil District Court Decision 86Na3231 delivered on August 25, 1987

The appeal is dismissed.

The costs of appeal are assessed against the defendant.

We examine the grounds of appeal.

Article 461 (2) 1 of the Civil Procedure Act as one of the grounds for dissatisfaction to a judgment of re-right refers to "when the procedure for a public summons is not permitted under the law" is abstract, general, without any legal basis to recognize it. Whether the fact-finding conducted within the individual procedure is unjustifiable or unreasonable or not, it does not constitute a violation of the law (see, e.g., Supreme Court Decision 70Da989, Jul. 24, 197; Supreme Court Decision 80Da1731, Oct. 14, 1980; 80Da1731, Oct. 14, 1980; 80Da1731, Oct. 14, 1980). If a deed for the declaration of invalidation of a deed is deemed as one of the objects of a public summons for the declaration of invalidation of a deed and its possession is an example to the case where the public summons is lost without any specific grounds for the adjudication procedure, it is not a case where the court declares the fact to be declared within 17.

According to the facts duly established by the court below, a promissory note which is the object of the judgment of nullification in Seoul District Court in other branch of Seoul District Court was issued and delivered to the non-party 1 who was an employee of the defendant on April 1, 1986 by the non-party 1 for the payment of the purchase price of goods to the defendant, but the non-party 1 escaped without delivering it to the defendant. Thus, the above court accepted the application and accepted the application and declared the judgment of nullification. Thus, even if the above promissory note was stolen in the above application of the public summons, it is clear that the above promissory note was embezzled by the non-party 1 or obtained by the above new electrical company, and it is not a case where the defendant lost its possession due to its theft, and it is not a case where the procedure of public summons is not permitted by law.

Therefore, the decision of the court below, which accepted the plaintiff's claim, is just and there is no error of law by misunderstanding the legal principles as to the grounds for appeal against the nullification judgment. The arguments are groundless.

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Jong-soo (Presiding Justice) Lee Chang-soo Kim Jong-won