Whether a document of lawsuit can be served as a supplementary service to the receiving agent who has conflicting interests with the principal and the relevant lawsuit (negative)

The supplementary service system is premised on a reasonable expectation that the document will be delivered to the principal in light of social norms, in light of his own intelligence and objective status, relationship with the principal, etc. even if the recipient is in receipt of the document. However, if there exists any conflict of interest or conflict between the principal and the recipient, it is difficult for the recipient to reasonably expect that the document will be delivered to the principal. The delivery of the document on behalf of the principal is contrary to the principle of prohibition of bilateral representation. Thus, the supplementary service cannot be made to the recipient on behalf of the principal, who is in conflict of interest with the interests of the principal and the relevant lawsuit.

Article 186(1) of the Civil Procedure Act

[Judgment of the court below]

Sung-S Co., Ltd. (Attorney Cho Jong-soo, Counsel for the defendant-appellant)

Suwon District Court Decision 2013Na12113 decided July 18, 2014

The judgment of the court of first instance is reversed, and the lawsuit of this case is dismissed. All costs of the lawsuit are assessed against the plaintiff.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

A. In principle, delivery of documents to the person to be served at the domicile, residence, place of business or office of the person to be served (Article 178(1) and Article 183(1) of the Civil Procedure Act), or, if the service institution fails to retain the person to receive the documents at the above place, it may be made by 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 the document will be delivered to the principal in light of social norms, in light of his own intelligence and objective status, relationship with the principal, etc. even if the recipient is in receipt of the document. However, if there exists any conflict of interest or conflict between the principal and the recipient, it is difficult for the recipient to reasonably expect that the document will be delivered to the principal. The delivery of the document on behalf of the principal is contrary to the principle of prohibition of bilateral representation. Thus, the supplementary service cannot be made for the recipient on behalf of the principal, who is in conflict of interest between the principal and the recipient.

B. According to the reasoning of the judgment below, on September 10, 2008, the plaintiff filed a lawsuit against the defendant on May 8, 2013, 2008, based on the Incheon District Court Decision 2008TTTTTTT 2008, 60 million won for the defendant and the third debtor. The plaintiff received the claim and retirement allowance claim against the non-party's defendant. The above court served the original copy of the decision of the seizure and collection order as the defendant's principal office. The above court received the original copy of the claim and collection order of this case, and the non-party did not deliver it to the defendant's representative director, but did not deliver it to the defendant's 3rd, based on the seizure and collection order of the claim of this case. The court of first instance received the defendant's principal office as the defendant's principal office, and the non-party did not receive the original copy of the lawsuit as the plaintiff's second court's main office and the third court's second court's second court's order.

Based on the above facts, the court below determined that the appeal of this case by the defendant is lawful, regardless of whether there is any reason not attributable to the defendant, since it is difficult for the non-party to deliver the documents received in the related lawsuit to the defendant as the debtor of the seizure and collection order of this case, and it is difficult to expect reasonable expectation that the documents will be delivered to the defendant, who is the principal. In such case, even if the non-party received the documents of lawsuit as the defendant's office clerk, it cannot be recognized as a supplementary service for the defendant. Therefore, it is inappropriate for the court of first instance to deliver the documents of lawsuit and the original copy of judgment to the non-party by means of supplementary service.

Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and the record, such determination by the lower court is justifiable. In so determining, contrary to what is alleged in the grounds of appeal, the lower court did not err by misapprehending the legal doctrine on supplementary delivery under Article 186

2. Regarding ground of appeal No. 2

A collection order shall be served on the garnishee and the debtor, and it shall become effective when the collection order is served on the garnishee (Articles 229(4), 227(2) and (3) of the Civil Execution Act).

The lower court, as indicated in its reasoning, acknowledged the fact that the original copy of the decision on the seizure and collection order of this case was served by means of supplementary service to the Nonparty, who is the Defendant’s business, but the Nonparty was the obligor of the seizure and collection order of this case and the interest of the Defendant. Therefore, the supplementary service to the Nonparty is inappropriate, and there is no evidence to acknowledge that the original copy of the decision on the seizure and collection order of this case was served to the Defendant, who is the garnishee, and therefore, determined that the seizure and collection order of this case

Examining the reasoning of the lower judgment in light of the aforementioned legal principles, the said determination by the lower court is justifiable, and contrary to what is alleged in the grounds of appeal, the lower court did not err by misapprehending the legal doctrine on supplementary delivery under Article 186(1)

3. Ex officio determination

As seen earlier, insofar as the original copy of the decision on the seizure and collection order of this case was not legally served on the Defendant, who is the garnishee, and thus the seizure and collection order of this case became effective, the Plaintiff, the obligee, has no authority to file a lawsuit against the Defendant directly claiming the collection amount. Thus, the lawsuit of this case is instituted by a person who is not qualified as the party, and thus, should be dismissed.

Nevertheless, the lower court deemed that the existence of the right to collect was merely a mere matter concerning the legitimacy of the claim, and dismissed the Plaintiff’s claim. In so determining, the lower court erred by misapprehending the legal doctrine on the eligibility of a party, thereby adversely affecting the conclusion of

4. Conclusion

Therefore, the judgment of the court below is reversed ex officio. Since this case is sufficient for the court to directly judge this case, the judgment of the court of first instance shall be revoked, and the lawsuit of this case shall be dismissed, and the total costs of lawsuit shall be borne by the plaintiff who is the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Poe-dae (Presiding Justice)