[1] The meaning of "where the place to be served is unknown" under Article 185 of the Civil Procedure Act

[2] The case holding that the judgment of the court below, which proceeded without examining the parties without any special circumstances in examining the family non-litigation case of Category E, which is a case requiring a necessary examination, is erroneous in violating the relevant adjudication procedure

[1] Articles 34 and 48 of the Family Litigation Act; Article 10 of the Non-Contentious Case Litigation Act; Articles 167(1) and 185 of the Civil Procedure Act / [2] Articles 34 and 48 of the Family Litigation Act; Article 10 of the Non-Contentious Case Litigation Act; Articles 167(1) and 185 of the Civil Procedure Act

Re-appellant

Incheon District Court Decision 2008BB23 dated October 22, 2008

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

According to Article 48 of the Family Litigation Act, adjudication on a non-contentious family case of Category E shall be conducted in the absence of special circumstances. According to Article 34 of the Family Litigation Act, Article 10 of the Non-Contentious Case Litigation Act, and Article 167(1) of the Civil Procedure Act, the designated date of trial shall be notified by serving a notice of date or a summons. Meanwhile, pursuant to Article 185(1) and (2) of the Civil Procedure Act, if the party changes the place where the service is to be served, the party shall immediately report the purport to the court. If the place where the service is to be served is not known differently, the document to be served on the person who fails to report may be sent to the previous place where the service is to be served by the Supreme Court Regulations. Here, the phrase “where the place where service is to be served is unknown” need to order the other party to correct his/her address or to investigate ex officio the resident registration card, etc.

According to the records, on May 7, 2008, the re-appellant submitted a written appeal to the address of Eunpyeong-gu (Seoul Metropolitan City: 1 omitted) (hereinafter "former address") and received the other party's written appeal on July 3, 2008, and submitted a receipt to the address of "Yeong-si (2 omitted)". The court below failed to deliver the first date notice to the previous address of the re-appellant but it was impossible to serve the notice due to the director's unknown. The court below sent the notice to the previous address without attempted to deliver the "Yeong-si (2 omitted)," and the first date of examination was proceeded without the second date of examination while the re-appellant was absent; the second date of examination was sent to the previous address without the second date of examination; the second date of examination was served without the second date of examination and without the second date of examination; the court below's notice was delivered to the second time without the second date of examination and without the second date of examination. Thus, the court below's failure to send the notice to the second (2 omitted) address.

Therefore, in examining the family non-litigation case of Category E, which is the case requiring a necessary examination, there is an error in violation of the trial procedure in the judgment of the court below proceeding without examining the re-appellant who is the party without any special circumstance

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Nung-hwan (Presiding Justice)