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(영문) 인천지방법원 2017.11.23 2017나51283
부당이득금
Text

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

Purport of claim and appeal

1..

Reasons

1. Determination on the legitimacy of a subsequent appeal

A. If a copy, original copy, etc. of a complaint was served by service by public notice, barring any special circumstance, the defendant was unaware of the service of the judgment without negligence, and in such a case, the defendant may file an appeal to correct it within two weeks (30 days if the reason was in a foreign country at the time when the reason ceases to exist) after it ceased to exist because it was impossible to comply with the peremptory period due to a cause not attributable to him/her.

Here, the term “after the cause has ceased” refers to the time when a party or legal representative becomes aware of the fact that the judgment was delivered by public notice, instead of simply knowing the fact that the said judgment was delivered by public notice. Thus, barring any other special circumstance, it should be deemed that the party or legal representative becomes aware of the fact that the judgment was served by public notice only when the party or legal representative inspected the records of the case or received the original copy

(see, e.g., Supreme Court Decision 2010Da75044, 75051, Jan. 10, 2013). (B)

In the instant case, on August 25, 2016, the Plaintiff filed a lawsuit against the Defendant on August 25, 2016 with the Incheon District Court Branch Decision 2016Kadan12459. When the copy of the complaint sent to the Defendant’s resident registration address was unable to be served, the said court served the Defendant’s resident registration by service of public notice, and served the Defendant’s winning judgment on December 20, 2016. On the instant lawsuit, the original copy of the judgment of the first instance against the Defendant was served by service by public notice. The Defendant became aware of the existence of the judgment of the first instance court of this case and that the judgment was served by service of public notice by means of other civil trials (Seoul Central District Court Decision 2016Na31304) that were served between the Plaintiff and the Plaintiff. The Defendant became aware of the existence of the judgment of the first instance court of this case and that the judgment was served by service of public notice by public notice on January 10, 2017.

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