2017Na5504 Preemptives

A

B

Jeonju District Court Decision 2009Kadan1738 Decided September 11, 2009

March 22, 2018

April 12, 2018

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

1. Purport of claim

The defendant shall pay to the plaintiff 86 million won with 25% interest per annum from February 28, 1998 to the service date of a copy of the complaint of this case, and 20% interest per annum from the next day to the day of full payment.

2. Purport of appeal

The part against the defendant in the judgment of the first instance shall be revoked, and the plaintiff's claim against the defendant shall be dismissed.

1. Facts of recognition;

A. C filed a lawsuit against the Defendant on February 23, 1998 against Jeonju District Court Branch of 98Kahap958, which decided on February 4, 1999 that “the Defendant shall pay C the amount of KRW 86 million and the amount calculated by the rate of KRW 25% per annum from February 28, 1998 to the date of full payment,” and the above judgment was finalized on March 24, 1999.

B. C transferred a claim based on the above judgment to the Plaintiff on January 7, 2009, and sent notice of the assignment of claim to the Defendant by mail as of the same day. On February 2, 2009, the Plaintiff filed the instant lawsuit. On April 8, 2009, the court of first instance rendered a favorable judgment of the Plaintiff on September 11, 2009 after serving the copy of the instant complaint to the Defendant by public notice. The original copy of the judgment of the first instance was also served to the Defendant by public notice on September 15, 2009.

D. On November 23, 2016, the Plaintiff filed an application for the issuance of a seizure and collection order with the former District Court 2016 Other Bonds 8520 with the title of execution, which is the judgment of the first instance court on November 23, 2016. The said court accepted the application on November 25, 2016, and issued a seizure and collection order (hereinafter “instant claim seizure and collection order”) and served the original copy of the said judgment to the Defendant on December 1, 2016.

E. On March 21, 2017, the judgment of the first instance court on March 21, 2017, the Plaintiff filed an application for the entry of the defaulters’ list, etc. against the Defendant with the Jeonju District Court 2017Kau361, and the said court served the Defendant a written questioning on March 29, 2017.

F. On April 17, 2017, the Defendant submitted the instant written appeal to the court of first instance.

[Reasons for Recognition] Unsatisfy Facts, Gap evidence Nos. 1, 2, 3, and 5 (including paper numbers), facts with this court, the purport of the whole pleadings

2. Whether the incidental appeal of this case is lawful

A. Relevant legal principles

In the case of an appeal for subsequent completion, the reason for subsequent completion must be proved to the extent that its existence is publicly known or is not obvious to the court. Thus, a person filing an appeal for subsequent completion shall assert and prove that he/she was unable to comply with the peremptory period of an appeal due to a cause not attributable to himself/herself, and that he/she filed an appeal within two weeks after such cause ceases to exist (see Supreme Court Decision 2000Da21222, Jan. 30, 200). In addition, if a copy of the complaint and the original ruling were served by public notice, barring any special circumstance, the parties were not aware of the delivery of the ruling without negligence. In such a case, the defendant falls under the case where he/she was unable to comply with the peremptory period due to a cause not attributable to him/her and thus, he/she is able to file an appeal for subsequent completion within 2 weeks after such cause ceases to exist, and further, the parties or legal representatives were aware of the fact that the ruling was served by public notice or by public notice, and thus, it is reasonable to view that the facts were newly known by public notice (see Supreme Court Decision 2090.

B. Determination

In light of the aforementioned legal principles, according to the evidence as seen earlier, it is reasonable to view that the Defendant was aware of the existence of the judgment of the first instance court by being served with the original copy of the decision on the seizure and collection order of this case, which was indicated as the executive title, and that there was a special circumstance to recognize the circumstance (see, e.g., Supreme Court Decision 2017Kau361, Mar. 29, 2017), although the Defendant was unaware of the existence of the judgment of the first instance court prior to March 29, 2017 when receiving the written examination of the case on the non-performance list, according to the evidence as stated in subparagraph 7, the Defendant was aware of the existence of the seizure and collection order of this case, which was prior to the delivery of the written examination. Therefore, the Defendant’s aforementioned assertion is rejected).

After the judgment of the first instance court, the period of time normally required to find out the circumstances in which the judgment of the first instance was made;

At the time, it can be confirmed that the judgment of the first instance court of this case became aware of the fact that the appeal of this case was served by public notice. Since the appeal of this case was filed on April 17, 2017 after four months from the date of service of the seizure and collection order of this case, which was the date of service of the seizure and collection order of this case, it is reasonable to deem that the appeal of this case was filed after two weeks from the time when the defendant was ordinarily required to identify the reasons for the judgment of the first instance court, and the second week from the time when the reasons for not being responsible were extinguished. Therefore, the appeal of this case was filed two weeks after the lapse of two weeks from the time when the reasons for not being responsible, and the requirements were not satisfied.

3. Conclusion

If so, the defendant's appeal to correct it is unlawful, so it is decided as per Disposition by the assent of all participating Justices.

Presiding Judge, Judge and Standing Board

Judges Kim Gin-jin

Judges Park Young-young