The case holding that a ground for retrial under Article 422(1)11 of the Civil Procedure Act constitutes a ground for retrial

When it is impossible to serve a document by expressing an address that the respondent did not have resided in his/her family with the knowledge that the respondent had resided in his/her family at the time of filing a petition for divorce trial, the procedure is conducted by means of service by false entry as if his/her whereabouts are unknown, and the judgment becomes final and conclusive, this constitutes grounds for retrial under Article 422(1)1

Article 422 of the Civil Procedure Act

Supreme Court Decision 79Da1528 delivered on July 8, 1980

Attorney Choi Jong-soo, Counsel for plaintiff-appellant

appellees

Daegu High Court Decision 83Reu143 delivered on May 1, 1984

The appeal is dismissed.

The costs of appeal shall be assessed against the appellant.

1. We examine the grounds of appeal No. 1 by the appellant (responding applicant for a retrial, hereinafter referred to as the appellant).

According to the records of the judgment in Eul's evidence No. 1 and the judgment subject to review employed by the court below, the claimant living together with the defendant (the applicant for retrial; hereinafter the defendant) was registered as a resident on January 27, 1981 and became ex officio as of July 6, 1981, and was re-registered on March 16, 1982. The claimant filed a lawsuit against the defendant as of November 5, 1981, indicating the defendant's last address at the time when the registration of the defendant was ex officio (hereinafter referred to as an omission) and the documents of the lawsuit against the defendant were impossible to be served, the respondent was ordered to serve by public notice on the ground that his whereabouts was unknown, and the judgment subject to a retrial was carried out by public notice after being ordered to serve by public notice on the ground that the defendant was not known at the time of the above domicile. Meanwhile, according to the fact that the defendant's mother who was an applicant for a divorce at the time of the above ex officio cancellation of the defendant's resident registration, the defendant's domicile at the court below's first instance.

Ultimately, at the time of the claim for divorce adjudication, the claimant cannot be deemed to have filed a lawsuit by falsely entering the address that the respondent had not resided in his/her family at the last place of the respondent's address as if his/her whereabouts were unknown. The judgment of the court below in this case is just in holding that the judgment of the court below falls under the case where there is a ground for retrial stipulated in Article 422 (1) 11 of the Civil Procedure Act, and there is no error in the misapprehension of legal principles as to the grounds for retrial

In theory of the purport that each precedent cannot be a precedent appropriate for this case, and in particular, it cannot be deemed that the judgment that was pronounced to the improper address cannot be deemed final and conclusive, is a case where the judgment was delivered directly to the false address and the service has not taken effect. Therefore, it is not appropriate for the case where the service becomes effective once by service by public notice, such as this case.

In addition, even though the claimant reported a divorce as of June 23, 1982 by the ruling subject to review and accordingly the respondent was removed from the family register injury, it cannot be said that the respondent was aware of the fact that there was a divorce trial at the time of the above report date. As such, it is not possible to determine whether the period for filing a retrial of this case has elapsed since the date of the above report. Ultimately, all arguments are groundless.

2. We examine the second ground for appeal.

According to the reasoning of the judgment below, the court below held that (i) the claimant's assertion, namely, (ii) the respondent's refusal to do so and did not want to do so, and (iii) the respondent did not have any desire to do so, and the respondent's face, and there was no other day to blurize the marital fighting, such as the respondent's face, and (ii) the respondent's remaining son who was 2 years of age at the time of October 1980, refused to complete the adjudication, regardless of the end of the claimant, and (iii) the claimant was married with another woman on September 16, 1982 after the judgment subject to review of this case became final, and gave birth to the child, and thus the marital relationship with the respondent was no longer able to recover, each of the above reasons constitutes grounds for divorce under Articles 840, 2, 3 and 6 of the Civil Act, and there is no sufficient evidence to acknowledge that the respondent's claim for judicial divorce is not a reason for judicial divorce or divorce.

In light of the records, the court below's aforementioned determination of facts is acceptable, and even if the claimant is married with another woman at present and thereby the marriage with the respondent has been broken down, the principal liability caused by the failure is justified in the judgment of the court below that the claimant was brought about a divorce judgment by making the respondent known as the respondent's location unknown after leaving the respondent, and it is not erroneous in the misapprehension of legal principles as to the violation of the rules of evidence and the grounds for divorce, such as the claimant's argument, or in the incomplete hearing.

3. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Lee Sung-soo (Presiding Justice)