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(영문) 서울중앙지방법원 2017.08.16 2016나20038
건물철거 및 손해배상등
Text

1. Of the judgment of the first instance between the plaintiff A and the defendant, order the payment below.

Reasons

1. Determination as to the legitimacy of the subsequent appeal of this case

A. Article 173(1) of the Civil Procedure Act provides that "if a party is unable to observe the peremptory period due to any cause not attributable to him/her, he/she may supplement the procedural acts neglected within two weeks from the date on which such cause ceases to exist." In this context, "reasons for which the party cannot be held liable" means the reasons why the party could not observe the period even though he/she has performed the duty of due care to conduct procedural acts, even though he/she had performed the duty

However, in a case where the original copy of the judgment was served to the defendant by public notice, barring any special circumstance, the defendant shall be deemed to have failed to know the service of the judgment without negligence. If the defendant was not aware of the continuation of the lawsuit from the beginning and became aware of such fact only after the original copy of the judgment was served to the defendant by public notice, barring any special circumstance, it shall be deemed that the defendant’s failure to observe the peremptory term of appeal due to any cause not attributable to the defendant.

(See Supreme Court Decision 2005Da27195 Decided November 10, 2005, etc.). B.

According to the records of this case, the court of first instance rendered a judgment accepting the plaintiffs' claim on February 2, 2016 after serving a duplicate of the complaint against the defendant and the notice of the date of pleading by public notice, and proceeding with pleadings on February 2, 2016, and served the original copy of the judgment on February 4, 2016 to the defendant by public notice. The defendant was residing in Mexico during the first instance trial and was unable to receive documents of this case on March 22, 2016 after receiving the judgment of the first instance on March 25, 2016. Thus, the appeal of this case is lawful, barring special circumstances.

C. The Plaintiffs, and Plaintiff A, February 2, 2016, respectively.

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