(영문) 대법원 2017.9.12.선고 2017다234569 판결

According to the records, the defendant reported at the first instance court to "Gu Office E" and "F" as the delivery place, and the first instance court ruled against the plaintiff on August 9, 2016. The plaintiff submitted a petition of appeal to the first instance court on August 19, 2016 and stated "Gu Office E" as the service place other than the defendant's address. The court below served a duplicate of the petition of appeal and the notice of the date for pleading of appeal to the service place as the service place, and received F in the capacity of general affairs members. On April 12, 2017, the court below revoked the first instance court's judgment and rendered a partial favorable judgment of the plaintiff on May 17, 2017, and the defendant submitted the petition of appeal to the lower court on June 1, 2017.

However, in principle, delivery of documents to the person to be served at the address, residence, business office or office of the person to be served is in principle delivered to the person to be served (Articles 178(1) and 183(1) of the Civil Procedure Act). If the service institution fails to summon the person to be served at the above place, it may be based on a supplementary service made to his/her clerk, employee, or cohabitant (Article 186(1) of the same Act). On the other hand, the effect of the service-person report is limited to the corresponding court. On the other hand, the service-person report of the service-person shall be deemed to be the defendant's domicile, business office or office, etc., and the "F" upon receipt of a duplicate, etc. of the petition of appeal in this case shall be deemed to be the defendant's business office, office, employee, or cohabitant, and there is no evidence to view the defendant's service-person to be the defendant's business office, employee, or cohabitant. Thus, the duplicate, etc.

On the other hand, the defendant was not aware of the fact that the appeal concerning this case was filed without any cause attributable to the defendant due to the delivery of a duplicate of the petition of appeal in an unlawful way, and the date for the original deliberation without the defendant's appearance is proceeding, and the defendant's right granted as a party to the procedure was infringed upon. In such a case, it shall be deemed that the provision of Article 424 (1) 4 of the Civil Procedure Act can be applied by analogy (see, e.g., Supreme Court Decision 95Da21365, May 30, 197). In this regard, the judgment of the court below cannot be maintained any more unlawfully, and the ground for appeal pointing this out is with merit.

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