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헌재 2013. 3. 21. 선고 2012헌바128 결정문 [민사소송법 제150조 제3항 위헌소원]
[결정문]
Cases

Article 150(3) of the Civil Procedure Act (amended by Act No. 1288)

Claimant

Park ○

Attorney Shin Jae-sung et al.

relevant case

Seoul Eastern District Court 201Gaso737320 Damage Compensation (A)

Text

The proviso of Article 150 (3) of the Civil Procedure Act (amended by Act No. 6626 of January 26, 2002) shall not violate the Constitution.

Reasons

1. Case summary and the subject matter of the trial;

A. Case summary

(1) On October 26, 2011, the claimant filed a lawsuit seeking the payment of consolation money of KRW 5 million. In this lawsuit, when the resident registration of the defendant was cancelled ex officio and the address or place of work cannot be known, the Seoul East Eastern District Court decided to serve all the service of the defendant by public notice, and proceeded on the date for pleading under the absence of the defendant. The above court on March 26, 2012, recognized the facts asserted by the claimant only by the evidence presented by the plaintiff applicant.

In short, the Seoul Eastern District Court rendered a dismissal judgment on the ground that there is no other evidence to acknowledge it (Seoul Eastern District Court 201Gaso7320).

(2) On March 26, 2012, the claimant filed an application for adjudication on constitutionality of the proviso to Article 150(3) of the Civil Procedure Act, which does not apply mutatis mutandis to the case where the party to whom the notice of date was served by public notice during the proceeding, fails to appear on the date of pleading, but was dismissed on March 26, 2012 (Seoul East Eastern District Court 201Kagi497), and filed a constitutional complaint on the 30th

(b) Object of adjudication;

The object of the instant trial is whether the proviso of Article 150(3) of the Civil Procedure Act (amended by Act No. 6626, Jan. 26, 2002) (hereinafter “instant legal provision”) is unconstitutional, and the provisions and relevant provisions are as follows.

【Provisions Subject to Adjudication】

○ Civil Procedure Act (amended by Act No. 6626 of January 26, 2002)

(3) The provisions of paragraph (1) shall apply mutatis mutandis to the case where the parties fail to appear on the date for pleading: Provided, That the same shall not apply to the case where the parties to whom a notice of date was served by public notice were not present.

[Related Provisions]

○ Civil Procedure Act (amended by Act No. 6626 of January 26, 2002)

Article 150 (Deemed as Confession) (1) In a case where a party does not clearly dispute the facts alleged by the other party in a pleading, such fact shall be deemed to have been led to a confession: Provided, That the same shall not apply to the case where deemed to have proved the whole purport

(c)

Article 194 (Requirements for Service by Public Notice) (1) Where the address, etc. of a party or his working place is unknown, or the service to be made in a foreign country is unable to be in conformity with the provisions of Article 191 or it is deemed null and void accordingly, the presiding judge may, either ex officio or upon request of the party, order

Article 195 (Method of Service by Public Notice) Service by public notice shall keep the documents to be served, and shall post the grounds therefor on the court or bulletin board or in such a manner as prescribed by the Supreme Court Regulations.

Article 196 (Taking Effect of Service by Public Notice) (1) The first service by public notice shall take effect only after two weeks elapse from the date on which it is held in accordance with Article 195: Provided, That any subsequent service by public notice to the same party shall take effect from the day

(2) In cases of service by publication for foreign countries, the term of the main sentence of paragraph (1) shall be two months.

(3) The period under paragraphs (1) and (2) shall not be shortened.

The facts led by the parties in the court under Article 288 and the evident facts do not require any certification: Provided, That confession contrary to the truth may be revoked when it is attested that it has been made due to any mistake.

The examination of evidence under Article 295 (Examination of Evidence where a party fails to appear on the date of trial) may be conducted even when the party fails to appear on the date.

2. Summary of the claimant's assertion;

Service by publication by means of intentional concealment of evidence by the party in civil procedure and escape.

If the notice of date is served by the method of this, to exclude the application of the provision on the deeming of confession as to the absence of the party would infringe the right of the claimant who is the other party, personal rights, and the right of equality.

3. Determination

A. The issues of the instant case

The legal provision of this case is a law that forms a trial procedure for civil procedure, and it is a question whether the right to trial under Article 27 (1) of the Constitution of the other party to the party who has received notification of the date by public notice is infringed upon in the legislative formation.

The right to a trial under Article 27(1) of the Constitution is “the right to a trial in accordance with the procedure prescribed by the substantive law” and it is inevitable to establish a specific form of the right to a trial by legislators in order to ensure that the right to a trial is “the right to a trial in accordance with the procedure prescribed by the substantive law.” However, such legislation does not allow only the formal right or theoretical possibility that can bring a lawsuit to a court, but only ensure “the effectiveness of remedy of rights” to a considerable extent (see, e.g., Supreme Court Decision 14-2, 473, 481, Supreme Court Decision 203HunBa92, Mar. 31, 2005; Supreme Court Decision 17-1, 396, 402; Constitutional Court Decision 2003HunBa92, Mar. 31, 2005; Constitutional Court Decision 2003HunBa1, Jul. 1, 2002; Supreme Court Decision 2005HunBa245, Feb. 24, 2015.

Since the personal right claimed by the claimant is the substantive right at issue in the lawsuit in question seeking compensation for mental damage, there is no direct relationship with the legal provisions of this case. However, from the perspective of ensuring the effectiveness of the party's substantive remedy through civil procedure, it is within the limit of the formation of the right to request a trial.

It can only be seen as only.

On the other hand, although the claimant asserts that the right to equality is infringed, it is a problem that the legal provision of this case is in favor of the party who received the notification of the date by public notice, and in this regard, it is a matter of whether it goes beyond the limit of the formation of the right to trial from the perspective of whether it goes against the request for securing fairness in the procedure applicable to the opposing party in civil procedure.

B. Whether the right to trial was infringed

(1) The fact that a party made a confession in a civil lawsuit does not require any certification, and that is not obvious, that is, the court cannot find any fact contrary to it is because the submission of the materials that form the basis of fact-finding in accordance with the principle of pleading is to follow the responsibilities and intent of the party concerned. The filing of confession under Article 150 of the Civil Procedure Act intends to promote the efficient progress of the civil procedure by recognizing the other party’s assertion in the civil procedure and the intention to make a confession knowing it, based on the attitude of the party concerned in the process of the lawsuit. Since the confession is recognized as a party’s intention of confession in the process of the lawsuit, the party concerned may revoke the confession without proving that the confession was contrary to the truth or due to mistake even after

In light of the purport of such confession system, the provision that the party in receipt of the notification of the date by public notice in the instant legal provision shall not be regarded as a confession in the event of absence of the party in receipt of the notification of the date by public notice in the instant legal provision is based on the fact that, in the case of service by public notice, it cannot be deemed that the party in question was actually aware of the date, and thus, it cannot be deemed that there

The result is the result.

(2) Even if a confession is excluded pursuant to the legal provisions of this case, if a party fails to appear on the date, the other party may conduct an examination of evidence, which does not interfere with the other party’s assertion, and the burden of proof of such fact also exists to himself/herself. Therefore, the effectiveness of the other party’s substantive remedy through civil procedure is sufficiently guaranteed.

On the other hand, even if a party is deemed to be a confession due to his/her absence, if the party appears at the date of pleading of the fact-finding court after the fact-finding court and the party revokes the confession, the other party still bears the burden of proof as to the facts alleged to him/her, and thus, the exclusion of the principle of confession does not significantly affect the other party. Furthermore, the other party is able to undergo a prompt trial as it is, even without the attendance of one party pursuant to service by public notice, so that the other party is able to undergo a prompt trial. Therefore, in the case of service by public notice pursuant to the legal provisions of this case,

(3) Therefore, the legal provision of this case cannot be deemed to have exceeded the bounds of legislative formation on civil procedure, and thus, it does not infringe the right of appellant, who is the opposing party of the party notified by public notice, to receive an efficient and fair trial.

4. Conclusion

Therefore, the legal provision of this case is not in violation of the Constitution, and it is so decided as per Disposition by the assent of all participating Justices.

March 21, 2013

Judges

The presiding judge shall remand the judge;

Justices Park Han-chul

Justices Lee Dong-dae et al.

Justices Kim Jong-soo

Justices Lee Jin-sung

Justices Kim Chang-soo

Military Justice Cho Chang-ho

Justices Kang Jong-won

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