[1] Whether service under a lawful method under Article 217 subparag. 2 of the Civil Procedure Act has been made in a case where the country of adjudication, the legal suspension, did not follow the method and procedure of service prescribed in order to give the defendant an opportunity to defend against the defendant (negative)

[2] The case holding that the service of a writ of summons to the defendant who has the domicile outside the State of Washington cannot be deemed as service by a lawful method, which provides the response period of "20 days" rather than the response period of "60 days" under Article 4.28.180 of the amended Code of Washington of the United States of America and Article 4 of the Civil Rules

[1] Article 26(1) of the Civil Execution Act provides, “Compulsory execution based on a judgment of a foreign court may be declared lawful by a court of the Republic of Korea by a judgment of execution,” and Article 27(2)2 of the Civil Execution Act and Article 217 subparag. 2 of the Civil Procedure Act provide, “If a defendant who has failed to be served with a complaint or a document equivalent thereto, and a notice of date or an order, has been served for time necessary for defense in a lawful manner (excluding cases of service by public notice or any similar service), or has complied with the lawsuit even without being served with a notice of date or an order (excluding cases of service by public notice or any similar service).” Here, “the complaint or a document corresponding thereto and a notice of date or order” refer to a summons, etc. necessary for the commencement of the lawsuit, and demanding the lost defendant to have been served by a lawful method is intended to protect the defendant without obtaining an opportunity to defend the lawsuit. Therefore, the service of the defendant in the country where the suspension of law is concerned is not performed.

[2] The case holding that the service of a writ of summons to the defendant who has an address outside the State of Washington cannot be deemed to be a service by lawful method, which provides the response period of "20 days" rather than the response period of 60 days as stipulated in Article 4.28.180 of the Amendment Code of the United States of Washington and Article 4 of the Civil Rules of the United States of America

[1] Articles 26(1) and 27(2)2 of the Civil Execution Act, Article 217 subparag. 2 of the Civil Procedure Act / [2] Article 27(2)2 of the Civil Execution Act, Article 217 subparag. 2 of the Civil Procedure Act

[1] Supreme Court Decision 2003Da29555 Delivered on September 26, 2003

Plaintiff (Law Firm Haok, Attorneys Hong Dong-ok et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 200Na14488 decided May 1, 200

Hanjin SP Co., Ltd. (Law Firm Rate, Attorneys Lee Gyeong-Gyeong et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2006Na88168 decided March 21, 2008

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

Article 26(1) of the Civil Execution Act provides, “Compulsory execution based on a judgment of a foreign court may be declared lawful by a court of the Republic of Korea.” Article 27(2)2 of the Civil Execution Act, and Article 217 Subparag. 2 of the Civil Procedure Act provides, “If a lost defendant has been served with a complaint or a document equivalent thereto, and a written notice of date or an order for sufficient time necessary for defense in a lawful manner (excluding the case of service by public notice or any other similar service), or has complied with the lawsuit even without being served with the notice of date or an order,” the requirements for a judgment of execution. Here, “the complaint or a document corresponding thereto and a notice of date or order” refer to a complaint and a summons necessary for commencement of the lawsuit (see Supreme Court Decision 2003Da29555, Sept. 26, 2003). That being demanded by a lost defendant to receive a lawful method of service in accordance with such a summons, etc. is not in compliance with the lawful method of service in the country where the defendant lost the defendant did not comply with the lawful method of service.

Article 4.28.180 of the 20th Amendment Code of Washington and Article 4 of the Civil Rule of the 20th Amendment (hereinafter “CR”) provides that when the plaintiff files a lawsuit, the defendant who has his address outside the Washington shall be given a 60-day response period and shall deliver a writ of summons indicating that the judgment may be pronounced without the due date unless the plaintiff complies with the order of correction within that period. Article 55 of the CR provides that where the defendant is not present within the response period given by the 20th Amendment Code of the 4th Amendment, the plaintiff may request the defendant to correct the judgment of the court of this case without the response period of the 1st Amendment of the 4th Amendment. In addition, according to the records, the plaintiff cannot request the correction of the summons of this case to the defendant without the response period of the 20th Amendment.

Examining such legal and factual relations in light of the aforementioned legal principles, granting a response period of 60 days to the defendant having a domicile outside the domicile outside the domicile outside the jurisdiction of the State of Washington is deemed to stipulate a statutory period so that the defendant can effectively defend the lawsuit, taking into account the preparation of answers, the collection of evidence, and the arrival period of mail for the defendant who has a domicile outside the jurisdiction of the State of Washington. Thus, the delivery of a writ of summons giving a response period of 20 days to the defendant having a domicile outside the domicile outside the jurisdiction of the State of Washington is not a lawful method. Accordingly, the judgment of the foreign court of this case, which is limited, cannot be declared lawful by the judgment of execution because it falls short of the delivery requirements of Article 217 subparagraph 2 of the Civil Procedure Act.

Nevertheless, the lower court did not review and examine whether the requirements of Article 217 subparag. 2 of the Civil Procedure Act, which are the ex officio investigation, are met as a litigation requirement for the judgment of execution, and rendered a judgment of execution that declares the lawfulness of compulsory execution based on the judgment of the foreign court of this case. In so doing, the lower court erred by misapprehending the legal doctrine regarding the requirements for the judgment of execution, or by failing to exhaust all necessary deliberations, which affected the judgment.

Therefore, without further proceeding to decide on the remaining grounds of appeal, 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 Shin Young-chul (Presiding Justice)