[1] Whether the service of custody by an execution officer without verification of identity of the recipient himself/herself is lawful (negative)

[2] Whether the execution officer's clerical services are legitimate (negative)

[1] An execution officer performing the service under statutes, etc., who refers to the person himself/herself and refuses to affix his/her seal, must obtain identification cards such as resident registration certificates from the recipient and compare his/her pictures and objects attached thereto, or carefully verify that the person himself/herself is himself/herself through questioning, search, etc., and if it is merely a mere belief that the person’s statement was made without such confirmation procedure and the custody of litigation documents, it is difficult to view it as a lawful delivery under the Civil Procedure Act.

[2] An execution officer shall directly handle the service, but it is only possible to receive a subsidy from a clerical staff for the service incidental thereto, and such clerical staff shall not be allowed to perform the service directly under the pretext of the daily exchange of the auxiliary service.

[1] Article 186 of the Civil Procedure Act, Article 5 (2) of the Court Organization Act, Article 2 of the Enforcement Act / [2] Article 176 of the Civil Procedure Act, Article 8 (4) of the Enforcement Act, Article 21 (1) of the Enforcement Rule of the Enforcement Act

Sung Jin-Jin Park

[Defendant-Appellant] Jin-young (Attorney Yellow-soo et al., Counsel for defendant-appellant-appellant)

December 15, 2004

Seoul District Court Decision 2001Kadan29056, 2002Gadan1010 decided November 18, 2002

1. Of the decision subject to quasi-examination, the part of the decision as to the Plaintiff (Appointed Party and Quasi-Review Defendant) and the Appointers, Kim Master, and Defendant (Quasi-Review Plaintiff) shall be revoked.

2. Defendant (Quasi-Review Plaintiff) shall pay 50,433 won per month to the designated parties in the name of the Plaintiff (Appointed Party and Quasi-Review Party), Kim Young-gu, Seoul Seo-gu, Seoul, 294-2 large scale of 294-2 large scale of 294-2 large scale of 22,3,4,21, and 22 of the attached Form from October 19, 2002 to the time when 7/10 of the part on the part on the part on the part of the land on the part of the 7/10 of the land on the part on the part on the part of the 7/10 of the land on the part on the part on the part of the 7/10 of the site on the part on the part of

3. The remainder of the claim against the Plaintiff (Appointeds, Quasi-Re-Appellants) against the Defendant (Quasi-Re-Appellants, Appointeds, Kim Young-soos, and Sung-sungs) is dismissed.

4. Of the principal lawsuit, the part arising between the Plaintiff (Appointeds, Quasi-Re-Appellants) and the Defendant (Quasi-Re-Appellants), which occurred between the Plaintiff (Appointeds, Appointeds, Kim Young-soos, and the Defendant (Quasi-Re-Appellants), shall be borne by the Defendant (Quasi-Appellants)

5. Paragraph 2 can be provisionally executed.

Defendant (Quasi-Review Plaintiff) paid the amount of KRW 65,406 per month to the Plaintiff (Appointed Party, Quasi-Reviewing Defendant), 1,126,685 won from October 19, 2002, and the amount of KRW 22,3,44,21, and 22 from October 19, 2002 to Seo-gu Seoul Western-dong, Seodaemun-gu, Seoul, 294-2 to 83 square meters of the attached drawings.

The part of the decision on quasi-examination against the defendant (the appointed party, quasi-examination defendant) among the decision on quasi-examination shall be revoked, and the claim against the plaintiff (the appointed party, the appointed party, the Kim Young-soo, and the defendant (the quasi-examination plaintiff) shall be dismissed.

1. Basic facts

The following facts are either not disputed between the parties, or acknowledged in full view of the overall purport of the arguments in this Court’s on-site inspection results, as a result of the survey and appraisal of the appraiser’s stuffs as a result of Gap’s on-site inspection, Gap’s on-site inspection records, Eul’s on-site inspection records, Eul’s on-site inspection records, Eul’s on-site inspection records, and Eul’s on-site inspection records or images, a witness’s on-site 1, 2

A. (1) On April 19, 1999, with respect to the land of this case (hereinafter “instant land”) located in Seodaemun-gu Seoul, Seodaemun-gu, Seoul, 294-2 large scale 83 square meters (hereinafter “the land of this case”), the ownership of the Plaintiff (appointed party, quasi-Appellant, hereinafter “Plaintiff”) was acquired with the shares of 2240/8300, 1920/8300, 1920/8300, 1920/830 and 2240/8300 shares.

(2) The Defendant (hereinafter “Defendant”) manages an unauthorized building on the ground (hereinafter “the instant building”) that connects each point of the 17, 18, 19, 20, and 17 attached Form No. 17, 18, 19, 20, and 17 attached Form No. 17, and occupied the part on the part of the instant land, which connects each point of 22,3,4, 21, and 22 in sequence, as the site of the instant building.

The Defendant leased the above building to Park Ho-young from around 1993 to August 2002, and from September 1, 2004 to leats, the Defendant directly received the said building from Park Ho-young and leats.

(3) The monthly rent of the part of the instant land pertaining to the 8㎡ of a Gu part among the instant land is 60,335 won from April 19, 199 to April 18, 200, 61,352 won from April 19, 200 to April 18, 2001, and 61,352 won from April 19, 2001 to April 18, 2001, and 61,187 won from April 19, 2001 to April 18, 2002, and 65,406 won from April 19, 200 to October 18, 202.

B. On March 5, 2002, the aforementioned claim was filed against the Defendant for the payment of rent, etc. as the Government Branch of the Seoul District Court 2002Kadan1010 on March 5, 2002 (hereinafter referred to as “the principal claim”). The above claim was merged with the above court’s decision on July 24, 2002 as the above court’s consolidation order 2001Kadan29056.

At the time of the filing of the above complaint, the defendant's domicile and the plaintiff's domicile in the complaint were all "Seoul Mapo-dong 34-31", but the court mistakenly stated the address of the recipient of the complaint as "Seoul Mapo-dong 34-3" and served the complaint and response guide, and the head of this case was served on the defendant on March 14, 2002 at 34-31, 2002.

C. After that, the court tried to deliver a writ of summons to the defendant as of the date of pleading (as of July 24, 2002, 10:00), the date of verification appraisal (as of August 22, 2002, 14:30), the notification of the changed date (as of September 11, 2002), and the changed date (as of September 4, 2002, 34-3, Seoul Mapo-dong, which is not the defendant's domicile), but all of the documents were impossible to be served, and all the documents were sent to 34-3, Ma-dong, Mapo-gu, Seoul.

D. Meanwhile, the application for the modification of the purport and cause of the claim as of September 13, 2002 was served on the Defendant at 34-3, 'Seoul Mapo-dong, 34-3', and the court sent all the above documents to 34-3, MaMaMa-dong, Mapo-gu, Seoul, with the notice of verification appraisal date ( October 11, 2002), the date of pleading ( November 13, 2002), the notice of the date of pleading ( November 13, 200), October 29, 2002, and the application for the modification of the purpose and cause of the claim as of October 29, 2002, were sent to 'Seoul Mapo-dong, 34-3, MaMa-dong.

E. In the above litigation procedure on November 18, 2002, the above court shall pay 860,000 won to the plaintiff (appointed party) by December 31, 2002, and if delay is made, the court shall pay 25% interest per annum from the next day to the date of complete payment. 2. The defendant, from October 19, 2002 to the plaintiff (appointed party) by adding the amount calculated at the rate of 22,3,4,21,22 to the plaintiff (appointed party) in the attached list 1, among the real estate in the attached list 1, the attached Form 22,3,4,21,22 to the plaintiff (appointed party) and the plaintiff's designated party to whom the plaintiff had been delivered with 8 square meters of the land site to the defendant by the time of the loss of ownership or the above defendant's possession. Thus, the above decision was delivered to the defendant on April 3, 2005 to the execution officer of Mapo-gu District Court without justifiable reasons.

F. On August 14, 2003, the defendant filed a written objection with the court of this case claiming that he did not receive the decision of recommending the settlement of this case, but the court rejected the above objection on August 18, 2003. The defendant filed an immediate appeal, but the court dismissed the above appeal under the order of 2003Ra178 on October 19, 2003. The defendant submitted a written quasi-adjudication to the court of this case on September 2, 2003.

2. Judgment as to the existence of a ground for quasi-examination

A. The parties' assertion

The defendant is the quasi-examination ground of this case. Since the defendant was suffering from the disease at the time from the point of time to January 2003, 200, and provided medical treatment at the hospital while receiving medical treatment at the house of his father in the new village, the defendant did not receive a service of the ruling of recommending reconciliation at the place of service on January 5, 2003, and the defendant did not receive an opportunity to lawfully participate in the lawsuit, and the defendant did not receive an opportunity to lawfully participate in the lawsuit, and as to the claim that the above service constitutes a quasi-examination ground under Article 451 (1) 3 of the Civil Procedure Act, the plaintiff is legally served by the execution officer, and even if the above service is illegal, it does not constitute a ground for retrial.

(b) Points in dispute;

(1) Whether the service of enforcement officers on January 5, 2003 is lawful

Therefore, according to the above service document dated January 5, 2003 (hereinafter referred to as the "service of this case") as to whether service of this case was lawfully made or not, the service of this case was recorded as being confined to the defendant directly by the execution officer's sculve. However, according to the witness's testimony, the service of this case was actually made by the exchange of work causes for the above execution officer's execution officer's office, and the service of this case was conducted by the person who received the above litigation document is the defendant himself, and it was believed that the above service was not opened as the defendant, and the custody of the above litigation document is recognized. First of all, in order for the delivery to the delivery to the receiver who refuses to affix his seal, it is difficult to view it as being a legitimate delivery from the recipient's resident registration certificate after being presented an identification card as attached to the above document, or by comparing it with the witness's inquiry or the witness's legitimate delivery procedure, it is difficult to view it as the delivery of the document.

Furthermore, enforcement officers are engaged in the service of documents as prescribed by law (Article 55(2) of the Court Organization Act, Article 2 of the Enforcement Decree Act), enforcement officers are executing the service of litigation documents, etc. by the court as part of the action (Article 176 of the Civil Procedure Act). These affairs are prohibited from entrusting other enforcement officers with the compulsory work of enforcement officers unless there is any justifiable reason (Articles 6 and 16 of the Enforcement Decree Act). The enforcement officers are allowed to employ them only for the assistance of work, not for representation or delegation (Article 8 of the Enforcement Decree of the Enforcement Act, Article 21(1) of the Enforcement Rule of the Enforcement Decree of the Enforcement Act), other qualification requirements of enforcement officers are relatively relatively complicated (Article 5(1) of the Court Organization Act, Article 3 of the Enforcement Decree Act), and they are always subject to education prior to the handling of the work (Article 18 of the Enforcement Decree Act, the independence of enforcement officers' system, purpose of the enforcement officer system, and the service of documents are unlawful.

(2) Whether the grounds for quasi-examination constitute grounds for quasi-examination

Therefore, the decision subject to quasi-examination of this case is delivered to the defendant by a person who does not have the right to receive the documents by improper service, and the defendant was confirmed without knowing that the documents were served to the defendant. Since it is reasonable to view that the decision constitutes a ground for quasi-examination under Articles 461 and 451 (1) 3 of the Civil Procedure Act, the defendant may raise an objection pursuant to Article 173 of the Civil Procedure Act on the ground that the service of the decision subject to quasi-examination is illegal, as well as can bring an action for quasi-examination based on the above grounds for retrial.

3. Judgment on the merits

Although the defendant asserts that the owner of the building of this case is changed (the defendant's son) and the defendant merely manages the building of this case on behalf of the defendant. However, in light of the above facts and the statements of evidence Nos. 7 and 9, each of the documents Nos. 4 and 5, which seem to conform to the defendant's assertion, is insufficient to recognize it, and there is no other evidence to acknowledge it, it is reasonable to view that the person who actually has the right to dispose of the building of this case is the defendant.

Therefore, the defendant is in fact entitled to dispose of the building of this case and is obligated to return unjust enrichment due to possession of the part of the land of this case to the plaintiff et al.

Furthermore, as to the scope of unjust enrichment that the defendant should return to the plaintiff et al., the plaintiff et al. owns only 64/83 shares out of the land in this case (=240/830 + 1920/830 + 2240/8300 +). Thus, the defendant is obligated to pay to the plaintiff et al. the amount equivalent to the ratio of 50,433 won per month from October 19, 202 to October 18, 2002 (=2,586,927 x less than KRW 64/83, and less than KRW 1; hereinafter the same shall apply) and the amount equivalent to the ratio of 1,94,73 won per month from April 19, 199 to October 19, 202 (65,406 x 64/83). Accordingly, the defendant et al. is obligated to claim against the plaintiff et al. to deliver the amount to the plaintiff et al.

4. Conclusion

Therefore, the decision subject to quasi-examination of this case has a ground for quasi-examination under Article 461 and Article 451 (1) 3 of the Civil Procedure Act. Thus, the decision subject to quasi-examination of this case is revoked, and on the other hand, the claim of this case by the plaintiff et al. is accepted only for the part acknowledged above, and it is dismissed as it is so decided as per Disposition.

Judge Cho Chang-young