(영문) 서울중앙지방법원 2017.09.14 2017나5036

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(영문) 서울중앙지방법원 2017.09.14 2017나5036

부당이득금

Text

1. The part against the defendant in the judgment of the first instance shall be revoked;

2. The plaintiff's claim against the defendant is dismissed.

3...

Reasons

1. Article 173(1) of the Civil Procedure Act provides that “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 of care within two weeks from the date on which such cause ceases to exist.” In this context, the term “reasons for which the party cannot be held liable” means the reasons why the party could not observe the period, even though he/she performed the duty of care generally required for conducting the litigation.

However, in a case where the original copy of the judgment was served to the defendant by public notice, barring any special circumstance, the defendant shall be deemed to have failed to know the service of the judgment without negligence. If the defendant was not aware of the continuation of the lawsuit from the beginning and became aware of such fact only after the original copy of the judgment was served to the defendant by public notice, barring any special circumstance, it shall be deemed that the defendant’s failure to observe the peremptory term of appeal due to any cause not attributable to the defendant.

(2) According to the records of this case, the court of first instance rendered a judgment against the defendant on September 19, 2014 (see, e.g., Supreme Court Decision 2005Da27195, Nov. 10, 2005). According to the records of this case, the court of first instance rendered a judgment accepting the Plaintiff’s claim on September 19, 2014 after serving the Defendant with a notice of a copy of the complaint and the date of pleading by public notice, and served the original copy of the judgment to the Defendant by means of service by public notice on December 16, 2016. The Defendant becomes aware of the fact that the first instance judgment was rendered only on December 16, 2016, and can

Therefore, the Defendant’s appeal for the subsequent completion of the instant case was filed within two weeks from the date on which the Defendant became aware that the judgment of the first instance court was served by public notice, and is lawful by satisfying the requirements for subsequent completion

2. The facts of recognition are as follows:

참조조문

-민사소송법 제173조 제1항

참조판례

-대법원 2005. 11. 10. 선고 2005다27195 판결

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