(a) Whether a judgment becomes final and conclusive where the period of appeal has elapsed since an original copy of the judgment was served by public notice of requirements not to be required (affirmative)

B. Whether the court's dismissal of an appeal by the appellate court that only the defendant appealed against the judgment of the court of first instance with no declaration of provisional execution violates the principle of prohibition against disadvantageous alteration (negative)

A. If the original copy of the judgment was served on the defendant by means of service by public notice, even though the defendant's address is false or incomplete, such service is valid, so the judgment has res judicata effect because the judgment becomes final and conclusive formally in excess of the appeal period.

B. In the case of a judgment on a claim for property right, a declaration of provisional execution is to be rendered, regardless of whether there exists a request of the parties, and Article 385 of the Civil Procedure Act, which is based on the principle of disposition authority, is not applicable, since Article 385 of the same Act does not apply to the judgment on a claim for property right, the appellate court that only the defendant appealed against the judgment of the first instance where the provisional execution is not attached, and attached a declaration of provisional execution while dismissing an appeal, and the judgment of the first instance

(a) Article 179 of the Civil Procedure Act; Articles 199 and 385 of the same Act;

A. Supreme Court Decision 86Meu2397 decided Feb. 24, 1987 (Gong1987,530) (Gong1991, 227) 91Ma18 decided Feb. 27, 1991 (Gong1991, 1154)

Thaiei

Movement Affairs

Daegu District Court Decision 89Na871 delivered on October 31, 1990

The appeal is dismissed.

The costs of appeal are assessed against the defendant.

We examine the Defendant’s grounds of appeal.

1. Regarding ground of appeal No. 1

If the original copy of the judgment is served on the defendant by means of service by public notice, even though the defendant's address is false or incomplete, such service is valid, so the above judgment becomes final and conclusive formally due to the intention of the appeal period, and res judicata becomes effective (see, e.g., Supreme Court Decision 86Meu2397, Feb. 24, 1987; Supreme Court Decision 90Meu28559, Nov. 27, 1990).

According to the records, the original copy of the Supreme Court Decision 88Da12247 Decided March 13, 1989, which ordered the plaintiff to implement the procedure for registration of ownership transfer as to the real estate of this case, was posted on the court bulletin board by public notice, and the defendant filed a petition of appeal as of May 9, 1989. Thus, even if the defendant's address is false, the above judgment became final and conclusive on April 10, 1989 where the period for appeal was expired, and therefore, the above judgment has res judicata effect unless the appeal is revoked by subsequent completion or retrial, and it is obvious that the defendant's appeal against the above judgment was dismissed for the reason that the defendant's appeal against the above judgment was unlawful in the course of appeal, and the defendant's appeal against it was dismissed, and thus, the defendant's appeal against this judgment was final and conclusive, and thus, the theory of invalidation of the ground for appeal is not accepted.

In addition, the precedents cited by the theory of lawsuit (Supreme Court Decision 68Da1358 delivered on September 17, 1968; Supreme Court Decision 75Da634 delivered on May 9, 1978) do not serve the original copy of the judgment to the other party by means of service by public notice, but in a case where a person other than the other party receives it by serving it to the address of the other party indicated falsely by the complainant, it is not contrary to the judgment of the court below as different from this case. The arguments are groundless.

2. Regarding ground of appeal No. 2

In the case of a judgment on a claim for property right, a declaration of provisional execution is to be rendered, regardless of whether there exists a request by the parties, and Article 385 of the Civil Procedure Act, which is based on the principle of disposition authority, is not applicable to the judgment of the court. Therefore, in this case where only the defendant appealed with respect to the judgment of the first instance on which no declaration of provisional execution is attached, the court below dismissed an appeal and attached a declaration of provisional execution, and it cannot be deemed that the judgment of the first instance is disadvantageously changed

Therefore, the appeal is dismissed and the costs of appeal are assessed against the losing defendant. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Sang-won (Presiding Justice)