(영문) 대법원 2018.3.13.선고 2017다47994 판결

If a duplicate of the petition of appeal and the notice of the date of pleading were served by public notice, and the original of the judgment was served by public notice, the appellee was unaware of the fact that the procedure of the appellate court was in progress, and barring any special circumstance, the appellee was not aware of the service of the judgment without negligence, and barring any special circumstance, it constitutes a case where the appellee was unable to keep the peremptory period due to a cause not attributable to him/her, and thus, he/she may supplement the appeal within two weeks from the date such cause ceases to exist (within 30 days if the cause ceases to exist in a foreign country at the time when the cause ceases to exist (see Supreme Court Decision 2011Da102172, Apr. 13, 2012)

According to the records, the court below, on September 25, 2017, delivered a duplicate of the petition of appeal of this case and the notice of the date of pleading to the defendant, who is the appellant, by public notice, to proceed with pleadings. On April 1, 2008, the court below sentenced the judgment, and delivered the original copy of the judgment by public notice, and the defendant knew that the judgment of the court below was declared on September 16, 2017, and submitted a written appeal for the subsequent completion to the court below on September 25, 2017.

Examining the above facts in accordance with the legal principles as seen earlier, the Defendant could not observe the period of final appeal, which is a peremptory term, due to a cause not attributable to the Defendant. Since the Defendant supplemented the final appeal within two weeks from September 16, 2017, on which the cause ceases to exist, the instant final appeal is lawful.

2. Ex officio determination as to the defendant's infringement of rights under the procedure

The fact that an appeal concerning the instant case was filed without any cause attributable to the service by public notice from the duplicate of the petition of appeal to the contrary, and under such circumstances, the date for pleading of the lower court without the Defendant’s appearance, and the Defendant’s right granted as a party was infringed upon. In such a case, Article 424(1)4 of the Civil Procedure Act may apply mutatis mutandis to the case where a party was not represented by an agent (see, e.g., Supreme Court Decision 2015Da22663, Jul. 23, 2015). In this regard, the lower court’s judgment is unlawful and cannot be maintained.

Therefore, without further proceeding to decide on the 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.