[1] Criteria to determine whether a person living together with the recipient has an intelligence to make reasonable judgment

[2] The case holding that, in a case where Gap corporation filed a distribution objection against Eul et al., the mailman went to the service place of Gap corporation in order to serve a notice of receipt of a final appeal against Eul corporation, but the representative director Byung failed to meet the representative director Byung and delivered it to Eul et al. and received a defined signature, the supplementary service of the notice of receipt of the final appeal is not legitimate

[1] Article 186 (1) of the Civil Procedure Act / [2] Article 186 (1) of the Civil Procedure Act

[1] Supreme Court Order 9Mo225 dated Feb. 14, 2000 (Gong2000Sang, 991) Supreme Court Order 2005Ma1039 dated Dec. 5, 2005 (Gong2006Sang, 215)

Roon Industry Co., Ltd.

Defendant 1 and one other

Supreme Court Decision 2012Da11303 Decided March 26, 2012

All of the requests for retrial are dismissed. The costs of retrial shall be borne by the plaintiff (Plaintiff).

1. First, we judge the existence or absence of the grounds for retrial.

Inasmuch as a document to be served on a person living together with the person living together with the person living together is served with the person living together with the mental capability to make reasonable judgment, the document shall be effective even in cases where the person living together with the person living together with the mental capacity to make reasonable judgment does not know of the content of the document. In such cases, if the person living together with the mental capacity to make reasonable judgment exists, the document shall not have the ability to understand the validity of the general judicial system or procedural acts, but at least it shall have the ability to understand the purpose of service and to expect the document to be delivered to the person living with the receipt (see Supreme Court Order 9Mo25, Feb. 14, 200; Supreme Court Order 2005Ma1039, Dec. 5, 2005, etc.).

According to the records, at the court of final appeal (Supreme Court Decision 2012Da11303, Feb. 15, 2012, 2012) filed by the Plaintiff (hereinafter “Plaintiff”) against Defendant 1 and Defendant 2, the mailman went to the service place of the Plaintiff to serve a notice of receipt of a written appeal against the Plaintiff on February 15, 2012, but at this point, Nonparty 2, who was an infant living together with Nonparty 1, issued a notice of receipt of the written appeal record and received the signature of Nonparty 2 on the service document, and Nonparty 2 was a child of 8 years old and 9 months old at the time of receipt of the written appeal record as a birth on May 29, 203.

In light of the above recognition facts and records, Nonparty 2’s age, educational level, and legal meaning and importance of the notice of receipt of the records of appeal, barring special circumstances, such as where a mailman who served the documents of appeal knows the importance of the documents to be served to Nonparty 2 and took necessary measures, such as making it appropriate to deliver them to Nonparty 1, etc., it is deemed that most children of that age cannot be expected that they will deliver them to the recipient of the documents of appeal. Therefore, it is difficult to view that Nonparty 2 receiving the notice of receipt of the records of appeal has an intelligence to distinguish the interest related to the receipt of the documents of appeal. Accordingly, the supplementary service of the notice of receipt of the records of appeal cannot be deemed lawful.

Nevertheless, the judgment subject to a retrial is apparent to have dismissed the Plaintiff’s final appeal pursuant to Article 429 of the Civil Procedure Act and Article 5 of the Act on Special Cases Concerning the Procedure for Appeal of Supreme Court on the ground that the supplementary service of the notice of receipt of records of final appeal is lawful, and that the Plaintiff’s final appeal was not submitted within the submission period based on the date of receipt by Nonparty 2. Such judgment subject to a retrial is erroneous by omitting any judgment on important matters that may affect the judgment, which constitutes grounds for retrial falling under Article 422(

2. Furthermore, the grounds of appeal are examined.

A. As to Defendant 1’s ground of appeal

Examining the reasoning of the judgment below in light of the records, the court below acknowledged the facts as indicated in its reasoning after compiling the evidence adopted by the court below, and determined that Defendant 1 was lawful to pay damages for delay including KRW 49,315,068, in addition to the principal amount of the secured debt of each of the instant collective security interests, on the condition that Defendant 1 received KRW 200 million from Nonparty 1 by Nonparty 1 pursuant to the conciliation in this case, only was obligated to implement the supplementary registration procedure prior to the registration of establishment of each of the instant collective security interests of the instant corporation, on condition that he received KRW 200,000,000,000 from Nonparty 1.

In light of the relevant legal principles and records, the judgment of the court below is just and acceptable. In so doing, it did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, by omitting judgment on the amount of credit granted by Defendant 1, or by misapprehending the legal principles

B. As to the ground of appeal against Defendant 2

Examining the reasoning of the lower judgment in light of the record, the lower court acknowledged the facts as indicated in its reasoning after comprehensively taking account of the evidence adopted by the lower court, and determined that Defendant 2, who acquired opposing power and preferential right to payment regarding the instant housing, lost opposing power and preferential right to payment from the said housing around November 3, 2002, but who completed the lease registration, again acquired opposing power and preferential right to payment on or around November 3, 2008, and that Defendant 2 was not subject to return of KRW 30 million or KRW 40 million from the lease deposit.

In light of the relevant legal principles and records, such determination by the court below is just and acceptable. In so doing, it did not err by misapprehending the legal principles on opposing power and preferential right to payment, or by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules and by exceeding the bounds of the principle of free evaluation

3. Conclusion

Therefore, the judgment subject to retrial is justifiable in its conclusion that all appeals are dismissed, and all of the appeals of this case are dismissed in accordance with Article 460 of the Civil Procedure Act, and the costs of the retrial are borne by the losing party. It is so decided as per Disposition by the assent of all participating

Justices Lee Sang-hoon (Presiding Justice)