(영문) 대법원 2017.4.13.선고 2016다274560 판결

The part of the judgment of the court below regarding Defendant G is reversed, and that part of the case is remanded to the Panel Division of the Seoul Western District Court.

The defendant Korean Licensed Real Estate Agent Association's appeal is dismissed.

The costs of appeal between the plaintiff and the defendant Korean Licensed Real Estate Agent Association shall be borne by the defendant Korean Licensed Real Estate Agent Association.

Reasons

The grounds of appeal are examined.

1. As to Defendant G’s ground of appeal

A. Determination as to the legitimacy of the instant order for the subsequent completion

If a duplicate of the petition of appeal and the writ of summons were served by public notice, and the original copy of the judgment was served by public notice, the appellee was aware of the fact that the procedure of the appellate court was in progress, and barring any special circumstance, the appellee was unaware of such fact. In such a case, the appellee was unable to comply with the peremptory period due to a cause not attributable to him/her, and thus, he/she may file a subsequent appeal within two weeks from the date on which such cause ceases to exist (see, e.g., Supreme Court Decisions 95Da21365, May 30, 1997; 2015Da32509, Sept. 15, 2015).

According to the records, the court below revealed the following facts: (a) Defendant G was served with documents related to litigation, including a duplicate of the petition of appeal in this case and a writ of summons, by public notice; (b) partially revoked the part concerning Defendant G in the judgment of the first instance on November 10, 2016, and rendered a judgment citing the Plaintiff’s claim corresponding to that part; and (c) served the original copy of the judgment by public notice; and (b) Defendant G became aware of the fact that the judgment of the court below was served on November 29, 2016 after the period for filing the appeal against the judgment of the court below, and submitted the letter of appeal in this case to the court below on November 30, 2016, which is two weeks or less.

Examining these facts in light of the legal principles as seen earlier, since Defendant G appears to have failed to know the service of the lower judgment without negligence, it was impossible to comply with the peremptory period due to any cause not attributable to it, and Defendant G’s appeal of this case is lawful, since Defendant G received a written notice of the lower judgment from the Korea Licensed Real Estate Agent Association and submitted a written completion statement within two weeks from the time it became aware of the fact.

B. Determination on Defendant G’s grounds of appeal

According to the above facts, Defendant G was unaware of the fact that all the litigation documents were served by public notice after the duplicate of the petition of appeal, and the date for pleading of the court below without the attendance of Defendant G was proceeding without the presence of Defendant G, and Defendant G lost an opportunity to assert and prove the Plaintiff’s claim, thereby infringing upon the Plaintiff’s right granted due to the procedure. Thus, such a case should be deemed an absolute ground for appeal by analogical application of the provisions of Article 424(1)4 of the Civil Procedure Act, just as in the case where the party was not duly represented by his/her agent (see, e.g., Supreme Court Decisions 95Da21365, May 30, 1997; 2009Da1665, May 14, 2009).

Therefore, among the judgment below, there is an absolute ground for appeal regarding Defendant G, and this part of the ground for appeal by Defendant G pointing this out is with merit.

2. As to the grounds of appeal by Defendant Korean Licensed Real Estate Agent Association

According to the reasoning of the judgment below, the court below acknowledged the facts as stated in its judgment, and held that since D, an intermediary assistant for the defendant G, which entered into a mutual aid contract with the defendant G, caused damage to the plaintiff by intentional or negligent misconduct to recover and refund the reserved money and premiums, the defendant G, a broker, was liable to compensate the plaintiff for damages caused to the plaintiff due to the negligence in D's brokerage, as a mutual aid business operator who entered into a mutual aid contract with the defendant G, and limited its liability to 50% in consideration of the plaintiff's error as stated in its judgment. In light of the relevant legal principles and records, the above judgment of the court below is acceptable, and there was no error by misapprehending the legal principles as to the object and scope of brokerage under the Licensed Real Estate Agents Act.

3. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal by Defendant G, the part concerning Defendant G among the judgment below is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. The appeal by the Korea Licensed Real Estate Agent Association is dismissed, and the costs of appeal between the Plaintiff and the Korea Licensed Real Estate Agent Association are assessed against the Defendant Licensed Real Estate Agent Association. It is so decided as per Disposition by the assent of all participating Justices