[1] The meaning of "when both parties do not appear on the date of pleading" under Article 241 of the Civil Procedure Act

[2] Whether the absence of both parties is effective due to service by public notice of non-requirements (negative)

[1] In cases where a lawsuit or an appeal is deemed to have been withdrawn pursuant to Article 241(2) and (4) of the Civil Procedure Act, considering that the period of application for designation of the date of January as stipulated in Article 241(2) of the same Act is not a peremptory term, and thus the subsequent completion is not permitted, the phrase “when both parties are not present on the date of pleading” as stipulated in Article 241(2)1 and (2) of the same Act refers to “when both parties are not present on the date of pleading” means that both parties are not present on the date of pleading even after being served through lawful procedures. As long as the procedure of service on the date of pleading is lawful, the service is valid, and even if both parties

[2] Even though it is obvious that the address, residence, and other places to be served are not known, if the presiding judge orders the summons to be served by public notice on the date of pleading against the party by the date of pleading against the party, and the summons is served by public notice on the date of pleading against the party, that party cannot be deemed to have received the service by legitimate procedures on each date of pleading, and thus, even if the above service by public notice has its validity, it cannot be deemed that the absence of both parties did not appear on each date

[1] Article 241 of the Civil Procedure Act / [2] Articles 179 and 241 of the Civil Procedure Act

[1] Supreme Court Order 92Ma175 dated April 21, 1992 (Gong1993Sang, 1464) / [2] Supreme Court en banc Order 84Ma20 dated March 15, 1984 (Gong1984, 689) Supreme Court Order 90Ma18 dated February 27, 1991 (Gong191, 1154)

Plaintiff (Law Firm Jin Law, Attorneys Kim Jong-won et al., Counsel for the plaintiff-appellant)

Defendant (Attorney Kim Jong-chul, Counsel for defendant-appellant)

Suwon District Court Decision 94Reu144 delivered on August 16, 1996

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

We examine the grounds of appeal.

In a case where a lawsuit or an appeal is deemed to have been withdrawn pursuant to Article 241(2) and (4) of the Civil Procedure Act, the period for filing an application for designation of the date of one month as prescribed in Article 241(2) of the Civil Procedure Act shall not be a peremptory term, and thus the subsequent completion is not permitted, considering the fact that the period for filing an application for designation of the date of one month as prescribed in Article 241(2) of the Civil Procedure Act is not a peremptory term, the term "if both parties fail to appear on the date of pleading" refers to the case where both parties are served in accordance with legitimate procedures and are not present on the date of pleading, and as long as the service procedure of the date of pleading

According to the records of this case, the summons of the first instance court against the plaintiff was served to the plaintiff's domicile as stated in the judgment of the court of first instance, but it was impossible to serve the summons of the court of first instance on the ground that it was not served to the plaintiff's domicile. The above summons of the court of first instance against the defendant was served to 3 0 0 0 0,000,000,000, and it was impossible to serve the summons to the defendant's domicile as an addressee's unknown address. The presiding judge of the court below determined that it was erroneous that the service of the writ of summons against the defendant was impossible even if it was served to the defendant's domicile, not the domicile, but the domicile, residence, and other place to serve the plaintiff and the defendant, and that the service of the summons of the court of first instance was ordered to be served to serve by public notice on the plaintiff's second and third date for pleading, and that there was no application for designation of the court of first instance against the plaintiff's second and third date for pleading within 15 months after the second date for pleading.

In addition, the defendant's family register was cancelled based on the judgment of the court of first instance which was not finalized, and the defendant does not have any interest in maintaining the appeal of this case. The arguments are without merit.

Therefore, the appeal is dismissed and all 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 Lee Yong-hun (Presiding Justice)