The meaning of the grounds for retrial under Article 422(1)11 of the Civil Procedure Act

The grounds for retrial under Article 422(1)11 of the Civil Procedure Act refers to the time when a lawsuit is initiated upon the order of service by public notice by deceiving the court that the party is aware of his domicile and residence of the other party and his domicile and residence are unknown. In a case where the party files a lawsuit with the knowledge of his domicile and residence, making the other party a false domicile and residence, and had a third party, who is not the defendant, receive the documents of lawsuit, the judgment is not lawfully delivered to the defendant, and the period of appeal is not commenced, and therefore, the judgment is not final and conclusive, and therefore, it cannot be subject to retrial, apart from the fact that the appeal is

Article 422(1)11 of the Civil Procedure Act

Supreme Court en banc Decision 75Da634 Decided May 9, 1978 (Gong1978, 10826) 78Da2113 Decided March 25, 1980 (Gong1980, 12736) decided May 14, 1985 (Gong1985, 843)

Plaintiff

Defendant

Seoul High Court Decision 93Na2911 delivered on August 26, 1993

The appeal is dismissed.

The costs of appeal shall be assessed against the defendant (Plaintiffs for retrial).

We examine the grounds of appeal by the defendant (the plaintiff of review, the plaintiff of review).

Article 422(1)11 of the Civil Procedure Act provides that "when a party institutes a lawsuit on the grounds that his/her domicile or residence was known and his/her whereabouts were unknown or false domicile or residence was unknown, the grounds for retrial are one of the grounds for retrial. However, the above grounds for retrial refer to the time a lawsuit was initiated upon the order of service by public notice by deceiving the court that the other party's domicile or residence was known and his/her domicile or residence was unknown. As asserted by the defendant, if the party files a lawsuit with the knowledge of the other party's domicile or residence and the third party who is not the defendant received the litigation documents, and the lawsuit was rendered in favor of the court on the grounds that the other party's domicile or residence was received, the court's decision is not lawfully delivered to the defendant, but the progress of the appeal period is not commenced. Therefore, the above grounds for retrial cannot be the grounds for retrial as provided in Article 422(1)11 of the Civil Procedure Act (see Supreme Court en banc Decision 78Da2113, Mar. 25, 1980).

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

Justices Ahn Yong-sik (Presiding Justice)