[1] The meaning of "a person living together" who can receive a supplementary service under Article 172 (1) of the Civil Procedure Act, and in case where the divorced wife actually belongs to the same household and is living together with the same household, whether he can be a person living together with the recipient as an agent in delivery (affirmative)

[2] Whether the place of supplementary service under Article 172 (1) of the Civil Procedure Act is limited to the person's domicile on his/her resident registration (negative)

[1] A person who can receive a supplementary service under Article 172 (1) of the Civil Procedure Act refers to a person who lives together with the same household as the person to receive the service, and does not necessarily have legal relations. Thus, even if a divorced wife is in fact belonging to the same household and is living together with the same household due to circumstances, he/she may be a person living together as a recipient agent.

[2] Article 170 (1) of the Civil Procedure Act provides that "the service shall be made at the address, residence, business place, or office of the person to be served", and the place to be served specially is not limited only to the resident registration address. Thus, it cannot be deemed that the service is unlawful on the ground that the place of supplementary service under Article 172 (1) of the Civil Procedure Act is not the resident registration address of the person to be served.

[1] Article 172(1) of the Civil Procedure Act / [2] Articles 170(1) and 172(1) of the Civil Procedure Act

[1] Supreme Court Decision 77Da2029 delivered on February 28, 1978 (Gong1978, 10707) Supreme Court Decision 80Da1662 delivered on April 14, 1981 (Gong1981, 13897) decided September 14, 1982 (Gong1982, 938)

Madle-hee

Seoul District Court Order 2000Ra2484 dated August 16, 2000

The order of the court below is reversed. The case is remanded to the Seoul District Court Panel Division.

The grounds of reappeal are examined.

1. According to the reasoning of the order of the court below, the court below acknowledged that Samsung Bio-stock Co., Ltd., the applicant creditor, applied for an auction for the exercise of security right based on the right to collateral security on the real estate in this case owned by the debtor, and applied for an auction with the debtor's address "Seoul Seocho-dong, Seocho-gu, 302, and the auction court served the auction decision on the real estate in this case as the debtor's address on December 28, 199, and the appellant was the debtor's address and received the auction decision at the same place on April 1, 199, but the appellant was already divorced from the debtor on April 1, 1996, and the debtor's resident registration certified copy was reported to be transferred to "Seoul-gu, Seoul, which is not the domicile indicated in the above auction application, and it is difficult to view that the auction decision was lawfully delivered to the debtor in this case where there is no evidence to acknowledge that the debtor had lived with the appellant at the place where the auction decision was delivered.

2. If the person to receive the service is not present at the place of service, the service may be made by delivering the document to the office worker, employee, or accommodation (Article 172(1) of the Civil Procedure Act), and the person who lives together with the same household as the person to receive the service (see Supreme Court Decision 77Da2029, Feb. 28, 1978). Since the person who actually belongs to the same household and is living together with the same household due to the circumstance, the person to receive the service may be a person to receive the service as an agent. Article 170(1) of the Civil Procedure Act provides that "the service shall be made at the address, residence, place of business, or office of the person to receive the service, and does not limit the place of service only to the domicile of the person to which the service is to be made, and thus, the service cannot be made illegal by being made at the place of service as defined in Article 172(1) of the Civil Procedure Act.

However, according to the records, the appellant received the decision to commence the auction of this case by asserting that he was living together with the debtor at the location of "Seoul Seocho-gu, Seocho-gu, Seoul, Seocho-gu 302 on December 28, 1999 (record 39 pages). Thus, in this case where there is no evidence to readily conclude that the appellant's assertion was false at the time of receiving the decision to commence the auction of this case, the notice of the decision to commence the auction of this case against the appellant is sufficient for the effective delivery to the debtor as "a supplementary delivery to the person living together" under Article 172 (1) of the Civil Procedure Act.

According to the reasoning of the order of the court below, the appellant has already divorced with the debtor on April 1, 1996, which was prior to the receipt of the decision to commence the above auction, but even if a divorced wife, he may actually belong to the same household and live together with the same household. In such a case, the appellant may be a person living together with the debtor in spite of divorce. Thus, in this case where the appellant asserts that he is living together with the debtor in spite of the divorce, the above reasons cannot be a circumstance to determine the validity of the supplementary delivery of this case.

Furthermore, the court below held that the debtor's domicile in his resident registration is different from the place of receiving the order of commencement of the supplementary service in this case where the appellant is living together with the debtor. However, the delivery of the supplementary service cannot be deemed to be unlawful solely on the ground that the place of the supplementary service is not the person's domicile on his resident registration. Rather, according to the records, the debtor's domicile on his resident registration was "Yecheon-dong Seoul Special Metropolitan City (record 36 pages)," but on March 28, 1996, his domicile was expressed as "Seoul Seocho-gu, Seocheon-dong 302, which is the applicant creditor, with the address of Seocho-gu, Seoul (Records 12 pages), and in light of this point, the debtor's domicile on his resident registration is not the actual domicile on his resident registration, but the actual domicile is merely the nominal domicile, and the actual domicile or the place of receiving the order of commencement of the auction in this case's auction in this case.

Nevertheless, without examining these issues, the court below concluded that it is difficult to see that the decision to commence the auction of this case was legally delivered to the debtor, and thus revoked the decision to permit the successful bid of this case and rejected the successful bid of this case. This does not constitute an unlawful act that affected the conclusion of the judgment by failing to exhaust all necessary deliberations as to the requirements for supplementary delivery under Article 172(1) of the Civil Procedure Act or by misunderstanding the legal principles pertaining thereto. The part pointing this out among the grounds for reappeal is with merit.

3. Therefore, the order of the court below shall be reversed, and the case shall be remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Yong-woo (Presiding Justice)