(영문) 서울중앙지방법원 2018.12.13 2018나36792

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Reasons

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글꼴

크기(pt)

굵기

줄 간격

자간(%)

(영문) 서울중앙지방법원 2018.12.13 2018나36792

판결금

Text

1. Revocation of a judgment of the first instance;

2. The instant lawsuit shall be dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

Reasons

1. Article 173(1) of the Civil Procedure Act provides, “Where a party is unable to comply with the peremptory period due to any cause not attributable to him/her, he/she may supplement the litigation by neglecting his/her duty of care within two weeks from the date on which such cause ceases to exist.” In this context, the term “reasons not attributable to the party” means the reasons why the party was unable to comply with the period, even though he/she performed the duty of care generally required for conducting the litigation.

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.

(2) According to the records of this case, the court of first instance may recognize the fact that the defendant served a copy of the complaint against the defendant and the notice of the date for pleading by public notice, and served the defendant by public notice, and then served the plaintiff's claim on January 22, 2010, and the original copy of the judgment was served on January 29, 2010 by public notice. The defendant was issued the original copy of the judgment of the first instance on May 8, 2018, and the defendant filed the appeal of this case on May 16, 2018.

Therefore, the Defendant’s appeal for the subsequent completion of the instant case was filed within two weeks from the date on which the Defendant became aware that the judgment of the first instance court was served by public notice, and is lawful by satisfying the requirements for subsequent completion

2. The instant lawsuit is instituted ex officio on the legitimacy of the instant lawsuit.

참조조문

-민사소송법 제173조 제1항

참조판례

-대법원 2005. 11. 10. 선고 2005다27195 판결

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