20Meu11658 Divorce

Plaintiff

Defendant:

Daegu Family Court Decision 2020Reu18 decided May 7, 2020

March 11, 2021

The judgment below is reversed, and the case is remanded to the Daegu Family Court.

The grounds of appeal are examined.

1. As a matter of principle, service by delivery to the person to be served at the domicile, residence, place of business or office of the person to be served (Articles 178(1) and 183(1) of the Civil Procedure Act). If the service agency fails to retain the person to receive the service at the above place, the service agency may serve as a supplementary service to the person to be served with intelligence to make reasonable judgment as his/her clerk, employee, or cohabitant (Article 186(1) of the same Act).

The supplementary service system is premised on a reasonable expectation that an agent, employee, or cohabitant, other than the principal, will deliver the documents of lawsuit to the principal in light of social norms, in light of his/her intelligence and objective status, relationship with the principal, etc. Even if the recipient receives the documents of lawsuit. In such cases, it is not easy for the recipient to receive the documents of lawsuit on behalf of both the parties to the lawsuit whose interests conflict with one of the plaintiffs or the defendant, and thus, it is difficult to reasonably expect that the documents of lawsuit will be delivered properly to both the parties to the lawsuit. Furthermore, the main sentence of Article 124 of the Civil Act, which purports to protect their interests by avoiding the risk of conflict of interest, violates the principle of prohibition of dual representation, barring any special circumstance, such as where the same recipient is unable to simultaneously receive the documents of lawsuit between the parties to the lawsuit, and such supplementary service is void (see Supreme Court Decision 2014Da54366, Nov. 10, 2016).

2. According to the reasoning of the judgment of the court of first instance cited by the court below, in this case where the plaintiff claimed a divorce against the defendant, the court of first instance rendered a decision of recommending a compromise between the plaintiff and the defendant (hereinafter referred to as "the decision of this case"), and the original decision of this case is the fact that the plaintiff and the non-party who is an adult child of the defendant and the defendant were simultaneously served on behalf of

3. We examine the above facts in light of the legal principles as seen earlier.

The Nonparty was simultaneously served the original copy of the instant decision on behalf of the Plaintiff and the Defendant, both of which are parties to the conflict of interest, and it is difficult to reasonably expect that both the Nonparty and the Defendant were to deliver the litigation documents properly. Therefore, barring any special circumstance, such as the Nonparty’s permission, the Nonparty’s delivery of the original copy of the instant decision on behalf of the Plaintiff and the Defendant at the same time is null and void.

Nevertheless, on the grounds as indicated in its reasoning, the lower court determined that the Nonparty’s receiving the original copy of the instant decision as a person living together with the Defendant was valid and that the instant lawsuit was terminated upon the confirmation of the instant decision. In so determining, the lower court erred by misapprehending the legal doctrine on supplementary delivery, thereby adversely affecting the conclusion of the judgment. The allegation contained in

4. Therefore, without further proceeding to decide on the remaining grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Dong-won

Justices Park Il-san

Justices Kim In-bok, Counsel for the defendant

Justices Heung-gu