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(영문) 서울중앙지방법원 2016.04.07 2015나30021
양수금
Text

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.

Reasons

1. Review of the record on the legitimacy of a subsequent appeal reveals the following facts.

In the first instance court, a copy of the complaint of this case and the date of pleading against the defendant were served by means of service by public notice, and the pleading was proceeded, and the judgment in favor of the plaintiff was rendered on November 28, 2008, and the original judgment was also served on the defendant by means of service by public notice.

However, the Defendant was aware of the progress of the instant pleadings and the pronouncement of the judgment on May 4, 2015, and became aware of the said judgment through the case search on May 4, 2015, and filed an appeal for the subsequent completion on May 6, 2015, which is within 14 days thereafter.

In such a case, barring any other special circumstances, it is reasonable to deem that the defendant was unable to observe the period of appeal, which is a peremptory term, by failing to know the progress and result of the instant lawsuit due to a cause not attributable to himself.

Therefore, the appeal of this case is lawful.

2. The Plaintiff sought payment from the Defendant on the premise that the claim stated in the instant claim was transferred to the Defendant, but there is no evidence to acknowledge this.

The records of the first instance trial are already discarded after the preservation period has already been expired before the defendant's legitimate appeal for completion, and the evidence submitted by the plaintiff cannot be present at present, and as a result, the first instance court, which is a small-sum case, is proceeding by service by public notice, is not stated the end of reasons in the judgment of the first instance.

The plaintiff is unable to answer the defendant's assertion and present his/her opinion on the method of evidence, as well as the fact that the plaintiff is served with a duplicate of the petition of appeal, statement of grounds of appeal, etc. by public notice at the trial court, and cannot make an assertion or submit evidence

If so, the plaintiff's claim shall be dismissed due to the lack of reason, and the judgment of the court of first instance is unfair with different conclusions, and thus the plaintiff's claim is dismissed.

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