Whether a subsequent completion is allowed in cases where the appellant had different knowledge of the fact that the appellate procedure was in progress by serving the original copy, etc. of the judgment in the appellate court by public notice (affirmative in principle)

Article 173 of the Civil Procedure Act

Supreme Court Decision 95Da21365 Decided May 30, 1997 (Gong1997Ha, 1995) Supreme Court Decision 2009Da1665 Decided May 14, 2009

Plaintiff (Law Firm Shin, Attorney Song-chul et al., Counsel for plaintiff-appellant)

Defendant (Law Firm Gwangju, Attorneys Park Gin-ok et al., Counsel for defendant-appellant)

Suwon District Court Decision 2009Reu285 decided October 11, 2011

The judgment of the court below is reversed, and the case is remanded to Suwon District Court Panel Division.

1. As to the legitimacy of the subsequent completion of the case

If a duplicate of the petition of appeal and a writ of summons were served by public notice, and the original copy of the judgment was served to the respondent by public notice, the defendant may be deemed to have been unaware of the fact that the plaintiff filed an appeal, and barring any special circumstance, the defendant could not be deemed to have been aware of the fact that the procedure of the appellate court was in progress by public notice. In such a case, the defendant may make a subsequent completion within two weeks from the date on which the reason was extinguished (within 30 days if the reason was in a foreign country at the time when the reason ceased to exist) by falling under the case where it was impossible to keep the peremptory period due to a cause not attributable to him (see, e.g., Supreme Court Decisions 95Da21365, May 30, 1997; 2009Da1665, May 14, 2009).

According to the records, the lower court: (a) served a duplicate of the instant petition of appeal on October 11, 201 and a writ of summons on the date of pleading by public notice; and (b) served the original copy of the judgment on October 19, 201 upon cancelling the judgment of the lower court and declaring that the Plaintiff would accept the Plaintiff’s claim; and (c) served the original copy of the judgment on October 19, 201 by public notice; (b) however, the judgment of the lower court became effective as served on the Defendant on October 19, 201 by public notice; (c) on November 3, 2011, the lower court was aware of the fact that the lower judgment was served on the Defendant by public notice; and (d) was submitted to the lower court on November 30, 2011, whose residence was his/her residential Hong Kong

Examining these circumstances in light of the legal principles as seen earlier, the Defendant was unable to comply with the period of final appeal, which is a peremptory term, due to any cause not attributable to himself. In such a case, the Defendant may subsequently make a subsequent supplement of the final appeal from November 3, 2011 to 30 days after having become aware of the fact that the lower judgment was served by public notice. Therefore, the final appeal of this case is lawful.

2. As to the ground of appeal on which the procedural rights of the parties were infringed

The defendant, from the duplicate of the petition of appeal to the delivery of all the litigation documents by service by public notice, was unaware of the fact that the appeal was filed without any cause attributable to the defendant. In such a situation, the date for pleading by the court below without the defendant being present, and the defendant lost an opportunity to assert and prove the plaintiff's claim, thereby infringing on the right granted as a party to the procedure. In such a case, as the case where the party was not duly represented by his agent, the provision of Article 424 (1) 4 of the Civil Procedure Act can be applied by analogy. In this regard, the judgment of the court below is an absolute ground for

3. Conclusion

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 Jeon Soo-ahn (Presiding Justice)