Court: "Delivery must be made to a lawful place such as the place of residence"
If a party loses a lawsuit because they could not attend the trial due to not receiving the lawsuit documents sent to an incorrect address written in the complaint, the Supreme Court has ruled that the trial must be retried.
The Supreme Court's First Division (Presiding Justice Kim Seon-su) announced on the 4th that it overturned the lower court's ruling, which had deemed the appeal withdrawn in a lawsuit filed by Company A against Mr. B to confirm the non-existence of a lien, and remanded the case to the Busan High Court.
In the lawsuit concerning the lien between Company A and Mr. B, the first trial sent the lawsuit documents to the address of Mr. A written in the complaint filed against Mr. B. However, the documents were not delivered, and Mr. B personally went to the post office to receive the documents.
Subsequently, Mr. B hired a lawyer, and all lawsuit documents were delivered to the lawyer. The first trial did not recognize any of Mr. B's lien claims, and Mr. B appealed the judgment.
The problem occurred during the appeal process. Mr. B proceeded with the lawsuit in the second trial without the help of a lawyer, but the lawsuit documents were not properly delivered to Mr. B.
The court sent Mr. B an order to prepare for clarification and notices for the first and second preparatory hearings, but these were returned on the grounds that there was no one to receive them. The court treated the documents as delivered and held two hearings in August and September of last year without Mr. B's attendance.
After learning of this fact belatedly, Mr. B hired a lawyer in November of last year and submitted a power of attorney and an application to designate a hearing date, but the second trial court ended the lawsuit in December by deeming the appeal withdrawn.
Article 268 of the Civil Procedure Act stipulates that if both parties do not appear at the hearing twice or, even if they appear, do not argue, and do not apply to designate a hearing date within one month, it is considered that the lawsuit has been withdrawn.
However, the Supreme Court's judgment was different. It reasoned that the address of Mr. B written in the lawsuit documents could not be definitively regarded as Mr. B's place of residence.
The court ruled, "(The address on the lawsuit documents) cannot be considered a lawful place of delivery where the defendant is likely to receive the lawsuit documents as it is not the defendant's place of residence."
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