Plaintiff

Sung-S Co., Ltd. (Attorney Cho Jong-soo, Counsel for the defendant-appellant)

June 27, 2014

Suwon District Court Decision 2013Na17578 Decided July 17, 2013

1. Revocation of a judgment of the first instance;

2. The plaintiff's claim is dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

The defendant shall pay to the plaintiff 45,00,000 won with 5% interest per annum from September 17, 2008 to May 16, 2013, and 20% interest per annum from the next day to the day of full payment.

2. Purport of appeal

The same shall apply to the order.

1. Facts of recognition;

(a) A collection order for the seizure and collection of the claim;

1) On September 10, 2008, the Plaintiff received a seizure and collection order (hereinafter “instant collection order”) against the Nonparty’s wage and retirement allowance claim against the Nonparty’s Defendant as the Incheon District Court Decision 2008TTTT 208TTT 11989, wherein the Nonparty and the third obligor are the Defendant and the third obligor as the claim amounting to KRW 60 million.

2) The above court served the original copy of the collection order of this case as the "Seoyang-gu (definite-si)" which is the location of the defendant's principal office. The debtor of the collection order of this case and the non-party, who is the defendant, received the original copy of the collection order of this case at the above domicile, but did not deliver it to the

B. Progress of the first instance court and its subsequent appeal

1) On May 8, 2013, the Plaintiff received the instant collection order against the Nonparty’s Defendant, and the Defendant asserted that it was obligated to pay the said collection amount to the Plaintiff, and filed a lawsuit against the Defendant in the first instance court against the Defendant.

2) On May 16, 2013, the court of first instance served a duplicate of the complaint of this case and a written guidance for litigation at the Sinyang-si ( Address omitted), which is the location of the Defendant’s head office. The Nonparty received the above litigation documents at the said place as the Defendant’s office clerk.

3) The court of first instance did not submit a written reply within 30 days from the date of delivery of the duplicate of the instant complaint. On July 17, 2013, the court rendered a favorable judgment of the Plaintiff without holding any pleadings pursuant to Article 257(1) of the Civil Procedure Act, and served the original copy of the judgment to the location of the Defendant’s principal office. The said original copy of the judgment was also received by the Nonparty as the Defendant’s clerk on July 22, 2013.

4) Meanwhile, the Nonparty did not deliver to the Defendant’s representative director the original copy of the litigation documents and judgment related to the first instance court received as above.

5) On August 30, 2013, the Defendant perused and copied the records of the first instance court, and on September 3, 2013, submitted a written appeal of the instant case to the court of first instance.

[Ground of recognition] Facts without dispute, significant facts in this court, Gap evidence Nos. 1, 2, Eul evidence Nos. 3 through 5, testimony of the non-party witness at the trial and the purport of the whole pleadings

2. Whether a subsequent appeal is lawful;

A. Summary of the parties' assertion

The plaintiff asserts that since all the documents of lawsuit delivered by the court of first instance received by the non-party who is the defendant's business, such documents are valid even if they were not delivered to the defendant's representative director, and the defendant did not file an appeal within the appeal period even after being served with the judgment, and it is difficult to view that there is any reason not attributable to the defendant due to failure to observe the appeal period, the defendant's incidental appeal is unlawful.

In regard to this, the defendant, although he received the documents of lawsuit delivered by the court of first instance, the above non-party is a party to the collection order of this case, and thus, the service on the non-party is unlawful, and the service on the non-party is not only illegal, but also the non-party failed to comply with the period of appeal of this case due to a cause not attributable to the defendant because the non-party received the above documents of lawsuit and delivered them to the defendant.

B. Determination

In principle, delivery of documents to the person to be served at the address, residence, place of business or office of the person to be served (Articles 178(1) and 183(1) of the Civil Procedure Act), or, if the person to be served is not present at the above place, it may be based on a supplementary service to his office worker, employee or cohabitant who is man of sense (Article 186(1) of the same Act). As seen above, the non-party, as a defendant's office worker, has the right to receive documents formally and actually delivered documents to the person to be served, is not related to the validity of the service. Thus, the delivery of documents and original copy of the judgment of the court of the court of the first instance, in formality, may be deemed valid. However, even if a third party, who is not the principal, receives documents, on the premise of social norms that such documents will be delivered to the principal in light of his status, relationship with the principal, and thus, it is difficult to view that there is a conflict of interests between the principal and the person to receive documents in question.

As seen earlier, it is difficult to expect that the non-party will deliver documents received in the relevant lawsuit to the defendant, who is the principal, as the debtor of the collection order of this case and the non-party, who is the third debtor, as the debtor of the collection order of this case. In such a case, even if the non-party received the litigation documents as the defendant's office clerk, it is not possible to recognize the validity as a supplementary service to the defendant.

Therefore, it is inappropriate for the court of the first instance to serve the non-party with an original copy of the lawsuit documents and the judgment by means of supplementary service, and thus the appeal period is not in progress. Thus, the defendant's appeal for subsequent completion of lawsuit in this case is lawful regardless of whether there are any grounds for not being responsible

3. Judgment on the merits

A collection order shall be served on the garnishee and the debtor, and it shall become effective when the above collection order is served on the garnishee (Articles 229(4) and 227(2) and (3) of the Civil Execution Act),

On the other hand, as seen earlier, the facts that the original copy of the collection order of this case was served by the means of supplementary service to the non-party, who is the defendant's business, may be recognized. However, the non-party is the debtor under the collection order of this case and the interest of the defendant differs from the defendant, so the supplementary service to the non-party is unlawful and as seen earlier, and there is no other evidence to acknowledge that the original copy of the collection order of this case was served to the non-party, the non-party, and

Therefore, the plaintiff's claim of this case based on the premise that the collection order of this case became effective upon the delivery to the defendant is without merit.

4. Conclusion

Therefore, the plaintiff's claim of this case is dismissed due to the lack of reason, and the judgment of the court of first instance with different conclusions is unfair, and the plaintiff's claim is dismissed. It is so decided as per Disposition.

Judges Cho Young-jin (Presiding Judge) Professor Young-Jap Kim Jong-man