In a case where: (a) although the Defendant entered a changed address in the response submitted to the first instance court; (b) the court sent the summons, etc. for preparatory date for pleading by registered mail to the address prior to the change thereof; and (c) the Defendant received the original copy of the judgment after the lapse of ten days from the appeal period, the case holding that the non-compliance with the foregoing peremptory period does not constitute a cause attributable to the Defendant.

Articles 173(1), 185, 194, and 396 of the Civil Procedure Act

Loyal Liquor Co., Ltd.

Defendant

Suwon District Court Decision 2007Na5066 Decided July 4, 2007

The judgment of the court below is reversed, and the case is remanded to Suwon District Court Panel Division.

The grounds of appeal are examined.

According to the records, on March 6, 2006, the defendant was served with a copy of the complaint of this case and a written guidance on lawsuit at the Gangdong-gu 509 Hodong apartment (hereinafter “former address”) (hereinafter “former address”). On March 10, 2006, on the 20th day of the above 2nd day of the 2nd day of the 1st day of the 2nd day of the 2nd day of the 1st day of the 2nd day of the 2nd day of the 2nd day of the 2nd day of the 2nd day of the 1st day of the 20th day of the 2nd day of the 2nd day of the 1st day of the 20th day of the 2nd day of the 1st day of the 20th day of the 2nd day of the 1st day of the 20th day of the 2nd day of the 1st day of the 20th day of the 20th day of the 2nd day of the 20th day of the 2nd day of the 3th day of the 3th day of the 2.

If there are these circumstances, it is reasonable to view that the Defendant was expected that the writ, etc. of the date for preparatory pleading was served to the changed address as stated in the written reply (the Defendant would have moved to a new address five days before the first date for preparatory pleading was impossible to be served due to the unknown whereabouts of directors, but if the court lawfully served to the changed address, the mail would have a high possibility of being served to the defendant's new address), and further, on March 6, 2006, only a copy of the instant complaint was properly served on March 6, 2006, and it is difficult to view that the Defendant, who was not lawfully served with the summons of the date for preparatory pleading and the date for preparatory pleading, including the summons of the first date for preparatory pleading, was immediately aware of the progress of the trial after seven months thereafter, and thus failed to comply with the peremptory period to the extent that 10 days could not be attributable to him.

Nevertheless, the court below rejected the appeal of this case on the ground that the failure of the defendant to observe the peremptory period of appeal as to the subsequent appeal of this case was attributable to the defendant. The court below erred by misapprehending the legal principles as to the observance of the peremptory period in service by publication and subsequent appeal, and failing to exhaust all necessary deliberations. The appeal pointing this out has merit.

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Nung-hwan (Presiding Justice)