[Judgment of the court below]

Defendant 1 and one other (Law Firm Maok et al., Counsel for the defendant-appellant)

May 22, 2014

Jeonju District Court Decision 201Na4529 Decided November 27, 2012

1. All appeals by the Defendants are dismissed.

2. The costs of appeal are assessed against the Defendants.

1. Purport of claim

The Defendants jointly and severally deliver to the Plaintiff 10,173 co-owned co-containers or containers 10,173. The Defendants shall pay to the Plaintiff 3,500 won per co-containers when compulsory execution of delivery of the above co-containers or containers is impossible.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Determination on the legitimacy of a subsequent appeal

Article 173(1) of the Civil Procedure Act provides that “Any reason for which a party cannot be held liable” refers to a reason for failure to observe the period despite the party’s exercise of general duty to act in the course of litigation. In a case where the documents of lawsuit cannot be served in a usual way during the course of litigation and served by public notice, the documents of lawsuit cannot be served in a way of service by public notice. As such, even if the party fails to investigate the progress of the lawsuit and fails to observe the peremptory period, it cannot be deemed that the party is attributable to a reason for not being held liable (see Supreme Court Decision 2012Da44730, Oct. 11, 2012).

According to the records, the court of first instance: (a) served a copy of the complaint to "No. 1 omitted in Jeju-si," which is the defendant's domicile in the complaint, but the plaintiff was unable to serve the copy due to the addressee's unknown, the court of first instance ordered the plaintiff to correct the address; and (b) the plaintiff corrected the defendants' address to "No. 2 Do Council office in Jeju-si ( Address 2 omitted); (c) the court of first instance served a copy of the complaint to the address in this case and received it on March 21, 2012; (b) the court of first instance served the notice of the date for pleading and the notice of sentencing to the address in this case but the delivery was impossible due to the addressee's unknown address; and (c) served the defendants with the original copy in this case after the court of first instance sentenced the judgment on November 27, 2012 to the address in this case; and (d) served the defendants by public notice to the court of first instance as to the defendants on March 21, 2015.

According to the above facts, the defendants are deemed to have known that the litigation procedure of this case was pending before the court of first instance by receiving a copy of the complaint of this case lawfully, and the defendants are obligated to investigate the progress of the lawsuit and its result, etc. by asking the court of first instance. Thus, even if the service of the original copy of the judgment of the court of first instance was made by service by public notice, it cannot be deemed to have been due to the defendants' failure to observe the period of appeal due to the reasons not attributable to the defendants. Thus, the appeal of this case is unlawful because it does not meet the requirements of subsequent completion.

2. Conclusion

Therefore, the appeal by the defendants is filed after the lapse of the appeal period, and it is unlawful because it does not meet the requirements for the subsequent completion thereof, and it is so decided as per Disposition.

Judges Shin Jae-nam (Presiding Judge)

Impossibility of signing and sealing due to the Kim Jong-tae leave