[1] In a case where it is deemed that the defendant was not aware of the service of the judgment without negligence as a result of service by public notice, whether an appeal for subsequent completion is permitted (affirmative), and in this case, the meaning of “after the time when the cause,” which is the starting point of reckoning the period for filing an appeal for subsequent completion, was known of the judgment, and there are special circumstances to recognize the circumstances as a matter of course by social norms, whether it is reasonable to deem that a cause not attributable to the defendant was extinguished at the time when the ordinary time required for identifying the facts of the judgment has elapsed (affirmative)

[2] In a case where the first instance court served a duplicate of the complaint and the original copy of the judgment to Defendant A by means of service, and thereafter, pursuant to the judgment of the first instance court, the Plaintiff Company B’s deposit claims, etc. were seized and collected, and the account was seized at the court’s request,” and the text message was received from the credit union C, the garnishee C, which was the garnishee C, with the case number of the claim seizure and the collection order, and the creditor, and where Party A received the original copy of the judgment of the first instance and filed an appeal for subsequent completion after two months thereafter, the case holding that it is difficult to view that Party A was aware of the fact of the judgment of the first instance or there was any special circumstance to recognize the circumstances under the social norms

[1] If a copy of a complaint, an original copy, etc. of a judgment were served by service by public notice, barring special circumstances, the defendant was unaware of the service of the judgment without negligence. In such a case, the defendant was unable to comply with the peremptory period due to a cause not attributable to the defendant, and thus, the defendant is entitled to file an appeal for subsequent completion within two weeks after such cause ceases to exist. Here, the term “after the cause ceases to exist” refers to the time when either the party or legal representative becomes aware of the fact that the judgment was served by public notice, rather than to the time when the party or legal representative becomes aware of the fact that the judgment was served by public notice. In addition, barring any special circumstances, in ordinary cases, it shall be deemed that the party or legal representative

However, in a case where the defendant knew of the fact that the judgment was in question and there was a special reason to recognize the circumstance as a matter of course, it shall be deemed reasonable to view that there was a cause not attributable to him by means of service, by means of public notice, at the time after the elapse of the ordinary time to inquire about the circumstance. However, in this case, the "the fact that the judgment was in question was in question," along with "the special circumstance that could identify the situation of the judgment," should be recognized.

In a case where a party to a legal brief, etc. served in a different proceeding is attached to a judgment of the first instance court and a confirmation confirmation source, etc. of the relevant case, the above special circumstances may be acknowledged. The same applies to a case where a lawyer consulted with regard to the measures to be taken after having become aware of the fact that there was the judgment of the first instance, or where a certificate of overseas residence necessary to file a subsequent appeal was issued. However, just on the ground that a seizure of corporeal movables was conducted, it is difficult to acknowledge the above special circumstances. Furthermore, even in a case where a party stated that “a debt collection will be conducted based on a written judgment” without specifying the case number in the course of a monetary call with an employee of a claims collection agency, it cannot be deemed that the facts

[2] In a case where the first instance court served a duplicate of the complaint and the original copy of the judgment to Defendant A by means of service, and thereafter, pursuant to the judgment of the first instance court, the Plaintiff Company B’s deposit claims, etc. were seized and collected, and the account was seized at the request of the court from the credit union C, a garnishee, and the text message stating the claim attachment, the serial number of the collection order, and the creditor. In a case where Party A received the original copy of the judgment of the first instance and then filed a subsequent appeal, the case held that the judgment of the court below erred by misapprehending the legal principles of the court below, on the ground that Party C was the content of the seizure and seizure of the account from the credit union C, and only the case number and creditor of the claim attachment and collection order were recorded, and it was difficult to view that the contents of the judgment of the first instance were not mentioned at all, or that there was any special circumstance to recognize the circumstances, barring any other special circumstances, the court below erred by misapprehending the legal principles of the judgment of the first instance court.

[1] Article 173(1) of the Civil Procedure Act / [2] Article 173(1) of the Civil Procedure Act

[1] Supreme Court Decision 98Da43533 Decided February 9, 199, Supreme Court Decision 2000Da21222 Decided January 30, 201, Supreme Court Decision 2011Da19430 Decided May 26, 201, Supreme Court Decision 2018Da25670 Decided September 13, 2018, Supreme Court Decision 2019Da217179 Decided September 9, 2019, Supreme Court Decision 2019Da17836 Decided December 12, 2019

Sexual Iron Co., Ltd.

Defendant (Law Firm Song, Attorneys Yoon Ho-ho et al., Counsel for the defendant-appellant)

Suwon District Court Decision 2019Na8891 decided September 8, 2020

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

The grounds of appeal are examined.

1. Case history

A. Review of the lower judgment and the record reveals the following facts.

1) On December 2009, the first instance court served a copy, etc. of the complaint against the Defendant by public notice, and proceeded with the pleadings, and rendered a favorable judgment of the Plaintiff around December 2009, and the original copy of the judgment was also served on the Defendant by public notice around January 2010.

2) On June 2019, according to the judgment of the first instance, the Plaintiff received a text message stating that the Defendant’s seizure and collection of the deposit claims, etc. against the third parties, including the non-party security credit cooperative, was issued by the Suwon District Court 2019TY 9800. On July 2, 2019, the Defendant was seized on the account at the request of the non-party security credit cooperative from the non-party security credit cooperative, “The number: 2018TY 98000, the creditor company: Sung Jae-sung (Plaintiff) and the court telephone number: 031214.”

3) On September 17, 2019, the Defendant perused and copied the records of the instant order of seizure and collection, and received the original copy of the judgment of the first instance on September 30, 2019. On October 1, 2019, the Defendant submitted the instant order of appeal for subsequent completion.

B. The lower court, on July 2, 2019, deemed that the Defendant was aware of the fact that he had received text messages on the part of his debtor, and at least there were special circumstances that could have been identified by social norms as to the circumstances, and determined that the appeal of this case, which had been filed two weeks thereafter, was unlawful since it was filed after the elapse of ordinary hours for identifying the circumstances. In a case where it was deemed that the Defendant knew of the fact that the judgment was in question and there were special circumstances that could naturally be recognizable as to the circumstances under social norms, the lower court confirmed that he was aware of the fact that the judgment was served by means of service, and that there was no reason that could not be responsible, by ratification, was extinguished, at the expiration of the ordinary time required for identifying the circumstances.

2. Determination

A. Unless there exist special circumstances, if a copy of a complaint, an original copy of a judgment, etc. were served by service by public notice, the defendant was unaware of the service of the judgment without negligence. In such a case, the defendant was unable to comply with the peremptory period due to a cause not attributable to him/her, and thus, the defendant is entitled to file an appeal for subsequent completion within two weeks after such cause ceases to exist. Here, the term “after the cause ceases to exist” refers to the time when the party or legal representative becomes aware of the fact that the judgment was served by public notice, rather than the time when the party or legal representative became aware of the fact that the judgment was served by public notice. In addition, barring any special circumstances, in ordinary cases, only when the party or legal representative peruses the records of the case or received the original copy of the judgment by public notice (see Supreme Court Decision 2011Da19430, May 26, 2011,

However, in a case where the defendant knew of the fact that the judgment was in question and there was a special reason to recognize the circumstances as a matter of course, it is reasonable to view that the court confirmed that the judgment was delivered by service by public notice at the expiration of the usual time to inquire about the circumstances, and that there was no reason to assume that the reason for not responsible ceases to exist (see Supreme Court Decision 98Da43533 delivered on February 9, 1999, which was invoked by the original court). In this case, it is obvious in the purport of the judgment that "the fact that the judgment was known" and "special circumstances to recognize the developments of the judgment" should be recognized.

Therefore, the above special circumstances may be acknowledged where the court of first instance and the confirmation confirmation source, etc. of the pertinent case are attached to the preparatory documents served in other litigation proceedings (see Supreme Court Decision 2018Da25670, Sept. 13, 2018). The same applies to a case where a party consulted with an attorney about the measures to cope with the situation after becoming aware of the fact that there was a judgment of the court of first instance, or where an overseas residence certificate, etc. was issued for filing a subsequent appeal (see Supreme Court Decision 2000Da21222, Jan. 30, 201). However, it is difficult to recognize the above special circumstances solely on the ground that the party was subject to execution of seizure of corporeal movables, etc. (see Supreme Court Decision 2019Da217179, Sept. 9, 2019). Furthermore, even in the case where a party did not specify the case number with a claims collection agency’s employees, it cannot be seen that the above special circumstances were 2019Da21719.

B. Examining the background of the instant case in light of the aforementioned legal principles, it is difficult to view that the Defendant was aware of the fact of the instant judgment, or that there was any special circumstance to recognize the circumstance in light of social norms, solely on the circumstance that the Defendant received text messages, which did not entirely mention the content of the instant judgment, from the Non-Party Security Credit Union “the account was seized at the request of the court” (the case number of claims seizure and collection order, and only the creditor). Therefore, barring any other special circumstance, the instant appeal was filed within two weeks from the date on which the Defendant received the original copy of the instant judgment, and was lawful.

Nevertheless, solely on the grounds indicated in its reasoning, the lower court determined that the instant appeal was unlawful as it was filed after the lapse of the period. In so doing, the lower court erred by misapprehending the Supreme Court’s precedents as seen earlier.

3. Conclusion

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 Noh Tae-tae (Presiding Justice)