[1] The time when the supplementary service under Article 186(2) of the Civil Procedure Act takes effect (=when the documents are delivered to the employed person, etc.)

[2] In a case where a party fails to abide by the peremptory period due to a failure to investigate the progress of the lawsuit, whether it can be deemed a party due to a cause not attributable to him/her (negative), and where the party is liable to assert and prove the fact that there is no negligence in failing to observe the appeal period (=the party who intends to supplement the appeal)

[1] Articles 183(1) and (2), and 186(2) of the Civil Procedure Act / [2] Articles 173(1) and 288 of the Civil Procedure Act

[1] Supreme Court Decision 2007Ma994 Decided January 14, 2008 Supreme Court Decision 2011Da85208 Decided February 23, 2012 / [2] Supreme Court Decision 2012Da98423 Decided April 25, 2013

Plaintiff

Defendant (Law Firm Hannuri, Attorneys Kim Un-soo et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2016Na2078401 decided January 25, 2018

The appeal is dismissed. The costs of appeal are assessed against the defendant.

Judgment ex officio is made.

1. According to Article 183(1) and (2) of the Civil Procedure Act, service shall be made at the domicile, residence, place of business, or office of the person to be served (hereinafter referred to as “domicile, etc.”), but when the person to be served fails to know the place of service, such as his/her domicile, etc. or is unable to serve it at such place, service may be made at another person’s domicile, etc. where the person to be served is employed by an employment, delegation, or other legal act (hereinafter referred to as “work place”). Article 186(2) of the same Act provides that when a person to be served is unable to take delivery at a work place, service may be made at such person’s employees, or his/her legal representative, employee, or other employee, who is man of sense of decentralization, without refusing the receipt of the document. As can, service of the document takes effect upon delivery to the person to be served at the work place of the person to be served, not at the time when the document was served (see Supreme Court Order 2007Ma2813, Jan. 28, 2014, 2008).

If a party fails to comply with the peremptory period due to a failure to investigate the progress of the lawsuit, it shall not be deemed that the party is due to any cause not attributable to him/her, and the fact that there was no negligence in failing to observe the period of appeal due to a failure to know the pronouncement and service of the judgment ought to be asserted and proved by the party to complete the appeal (see, e.g., Supreme Court Decision 2012Da98423, Apr. 25, 2013)

2. A. The record reveals the following facts.

1) The first instance court rendered a judgment against the Plaintiff on October 6, 2016, as a result of the Defendant’s attempt to serve a duplicate, etc. of the complaint on the Defendant’s resident registration as “Songnam-si ( Address 1 omitted), but the procedure was followed by service by service by public notice in order not to be served due to the addressee’s unknown address, etc.

2) Upon filing an appeal by the Plaintiff, the lower court served a duplicate of the petition of appeal on the domicile above, but returned on the ground that the addressee was unknown. According to the order of correction of the lower court, the Plaintiff stated the Defendant’s address as “Ssung City ( Address 2 omitted)” and the lower court served the duplicate of the petition of appeal on the domicile above, Nonparty 1, who is the general public, received the petition of appeal on December 28, 2016.

3) When the lower court served a notice of the first date for pleading on the domicile above, but it was impossible to serve the notice on the date for pleading because of the addressee’s absence and the addressee’s unknown whereabouts, the subsequent date for pleading, etc. was served by delivery by registered mail and subsequently rendered a judgment in favor of the Plaintiff on January 25, 2018, which partially revoked the first instance judgment and rendered a judgment in favor of the Plaintiff on January 25, 2018, and the original copy of the judgment was not served by means of service on February 14, 2018, and was served on March 1, 2018.

4) On April 18, 2018, the Defendant made an order of subsequent completion on the ground that “the Defendant became aware of the fact that the lower judgment was rendered only on April 9, 2018.” However, the Defendant did not make any specific assertion or proof as to the fact that the place where a duplicate of the petition of appeal was served is not the place of service, or that there was no negligence in failing to observe the period of appeal. On the other hand, the Defendant asserted that the Defendant immediately carried out the supplementary service on the ground that he did not know of the continuation of the instant lawsuit due to the lack of direct receipt or delivery of the duplicate of the petition of appeal, or that the delivery agency did not attempt to deliver the Defendant, without having attempted to deliver it to the Defendant.

B. Examining these facts in light of the legal principles as seen earlier, the duplicate of the petition of appeal against the Defendant is deemed to have been served lawfully by the method of supplementary service, and otherwise, it cannot be said that the Defendant was unable to comply with the period due to any cause not attributable to the Defendant. Ultimately, the instant appeal was filed after the period of final appeal, which is the peremptory term, was filed after the lapse of the period of final appeal, and it is unlawful and inappropriate and does not enable correction of the defects

3. Therefore, without further proceeding to decide on the grounds of appeal, the Defendant’s appeal is dismissed. 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 Jo Hee-de (Presiding Justice)