[1] Whether the service of documents by ordinary mail takes effect in the delivery of documents under Article 3 of the Act on Special Measures for Delayed Loans by Financial Institutions (affirmative)

[2] Whether the effect of the seizure already occurred where the auction court did not serve the original copy of the decision after the registration of the decision to commence auction was entered, but the decision was not served on the owner (negative)

[1] The notification or service under Article 3 of the former Act on Special Measures for Delayed Loans of Financial Institutions (repealed by Act No. 5693, Jan. 29, 199) takes effect by sending the service to the address (if the address is reported to the court) stated on the pertinent real estate registration injury at the time of application for auction. Whether the service was actually delivered or not or whether the service was impossible is affected by the above validity. Here, the service in question takes effect even if it is sent by ordinary mail, and it does not necessarily take effect only when the service report with a separate form is prepared, such as the case of service by mail under Article 187 of the Civil Procedure Act.

[2] If the original copy of the decision on voluntary commencement of auction was entered in the registration of the decision on commencement of auction before being sent to the owner’s address on the registry, the effect of seizure by the above decision on commencement of auction pursuant to Articles 728 and 603(4) of the former Civil Procedure Act (amended by Act No. 6626 of Jan. 26, 2002) shall be deemed to have occurred at this time. Therefore, even if the auction court did not send the original copy of the decision on commencement of auction to the owner’s address on the registry, the effect of seizure by the decision on commencement of auction which already occurred shall not be affected even if the original copy of the decision was not sent to

[1] Article 3 (see current Article 45-2 of the Act on Special Measures for Delayed Loans of Financial Institutions, etc.) of the former Act on Special Measures for the Prevention of Non-Performing Assets, etc. of Financial Institutions, and Article 173 (see current Article 187) of the former Civil Procedure Act (amended by Act No. 6626 of Jan. 26, 2002) / [2] Articles 197 (see current Article 211), 210 (see current Article 224), 603 (4) (see current Article 83 (4) of the Civil Execution Act), 728 (see current Article 268 of the Civil Procedure Act) of the former Civil Procedure Act (amended by Act No. 6626 of Jan. 26, 2002)

[1] Supreme Court Order 94Ma2134 dated June 5, 1995 (Gong1995Ha, 2490) Supreme Court Order 99Ma6589 dated January 31, 200 (Gong2000Sang, 579)

Plaintiff (Attorney Choi Chang-hwan et al., Counsel for the plaintiff-appellant)

Defendant 1 and five others (Attorneys Kang Chang-chul et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2002Na52635 delivered on February 11, 2003

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

We examine the grounds of appeal.

1. As to the grounds of appeal Nos. 1 and 3

The notification or service under Article 3 of the former Act on Special Measures for Delayed Loans by Financial Institutions (repealed by Act No. 5693, Jan. 29, 199; hereinafter referred to as the "Deferred Special Act") takes effect by sending the documents to the address (if the address is reported to the court) recorded on the real estate register injury at the time of application for auction. Whether the documents sent have been actually delivered or whether the documents are impossible to be delivered are not affected by the above effect (see Supreme Court Order 94Ma2134, Jun. 5, 1995; Supreme Court Order 9Ma6589, Jan. 31, 200). Here, the delivery takes effect even if it is sent by ordinary mail, and it does not necessarily take effect only when a report with a separate form is prepared, such as the case of postal service under Article 187 of the Civil Procedure Act.

The court below found that the auction court sent the original copy of the decision on voluntary commencement of auction on May 22, 1998 as "Seoul Seocho-gu ( Address 1 omitted), not the Plaintiff's address on the Plaintiff's registry, but the original copy of the decision on voluntary commencement of auction on May 22, 1998, but did not later send it to the Plaintiff's address on the Plaintiff's registry on October 1998, and then again sent the original copy of the decision on commencement of auction to "Seoul Yangcheon-gu ( Address 2 omitted)" which is the Plaintiff's address on the Plaintiff's registry (mail 2 omitted). Since the original copy of the decision on commencement of auction was sent to the Plaintiff's address on the Plaintiff's registry, the court below rejected the Plaintiff's assertion that the above service against the Plaintiff was not effective on the ground that the original copy of the decision on commencement of auction was not prepared on the Plaintiff's registry.

In light of the records and the above legal principles, the fact-finding and decision of the court below is just and there is no error of law such as violation of the rules of evidence, incomplete deliberation, or misapprehension of legal principles as to the service under Article 3 of the former Special Act. This part of the grounds for appeal cannot be accepted

2. Regarding ground of appeal No. 2

According to the records, on May 23, 1998, the original copy of the decision on voluntary commencement of auction as of May 23, 1998, which was prior to the delivery of the original copy of the decision on voluntary commencement of auction to the Plaintiff’s address on the Plaintiff’s registry, the owner, is known. Thus, the effect of seizure by the above decision on commencement of auction pursuant to Articles 728 and 603(4) of the former Civil Procedure Act (amended by Act No. 6626 of Jan. 26, 2002) is deemed to have occurred when the effect of seizure by the above decision on commencement of auction was entered. Thus, although the auction court indicated the obligor’s trade name at the time of the original decision on May 29, 198, the court decided to correct the obligor’s Dasan S&C' as the Dasan S&C' as of May 29, 1998, even if the original copy was not sent to the Plaintiff’s address on the registry, the owner of the above decision on commencement of auction has no legitimate effect.

Although this part of the judgment of the court below is somewhat insufficient in its reasoning, as long as the original copy of the above decision of correction is not served on the plaintiff, the auction procedure of this case is eventually not served on the original copy of the decision of commencing auction, and the auction procedure is in progress without an effect of seizure, and it is justifiable in rejecting the plaintiff's assertion that the seizure is null and void as it does not take effect, so it is not erroneous in the misapprehension and application of law as otherwise alleged in the ground of appeal. This part of the ground of appeal cannot be accepted.

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

Justices Park Jae- Jae (Presiding Justice)