(영문) 서울중앙지방법원 2021.01.29 2019나80055

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(영문) 서울중앙지방법원 2021.01.29 2019나80055

부당이득금

Text

1. Revocation of a judgment of the first instance;

2. The plaintiff's claim is dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

Reasons

1. Article 173(1) of the Civil Procedure Act provides, “If a party is unable to comply with the peremptory period due to any cause not attributable to him/her, he/she may supplement the litigation by neglecting his/her duty within two weeks from the date of the failure of such cause, and if a service by means of public notice is made on the main text of the complaint and the main text of the ruling, etc., the defendant is not aware of the service without negligence unless there are special circumstances. In such cases, the defendant is unable to comply with the peremptory period due to a cause not attributable to him/her, and thus, he/she is entitled to file an appeal for subsequent completion within two weeks from the date of the absence of such cause. Here, the term “after the absence of any cause” refers to the time when the party or legal representative becomes aware of the fact that the judgment was served by means of public notice, and furthermore, in cases of ordinary circumstances, the party or legal representative becomes aware of the fact that the judgment was served by means of public notice only after perusal of the records of the case or new receipt of the judgment.

It should be viewed (see, e.g., Supreme Court Decision 2004Da8005, Feb. 24, 2006). The court of first instance served a copy of the complaint against the defendant, notice of the date of pleading, etc. by means of each public notice, and declared a judgment accepting the plaintiff's claim on September 27, 2019 after the pleading was made. The judgment also served on the defendant by means of public notice delivery, and the fact that the defendant inspected the records of this case on November 29, 2019, and then filed an appeal for subsequent completion on December 11, 2019 is clear in the record.

Examining the above facts in light of the legal principles as seen earlier, the Defendant’s judgment of the first instance court of this case, without negligence, is a peremptory period for reasons for which the Defendant cannot be held liable because it was unaware of the fact that the judgment was served by means

참조판례

-대법원 2006. 2. 24. 선고 2004다8005 판결

유사 판례

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