하자 있는 송달과 재심 -공시송달을 중심으로-

Abstract

A recently delivered Supreme Court decision(2008DA27615) gives us a chance to consider whether case laws on the cases where the defendant does not participated in the process at all because of defective service are appropriate. Current case laws provide defendants with different measures according to whether the service was done by mail or publication; to whether someone disguising the defendant appeared in the procedure or not; to whether the plaintiff intentionally provided false address of a defendant. Accordingly, the Supreme Court has been ruled that the defendant can appeal in a case where the plaintiff intentionally provided false address of the defendant, someone disguising the defendant took the service of the complaint and the judgment was delivered under the § 257 (1) of the Civil Procedure Act without any time limitation, cause the service is void; the defendant can file for reopening of the proceeding under the §451 (11), which should be raised within 5 years from the date when the period for appeal passed, in a case where the plaintiff provided false address or claimed the defendant is missing, and the service was done by publication; finally the defendant can file for reopening of the proceeding under the §451 (3), which does not have any time limitation, in a case where someone disguising the defendant appeared in the process and made admission. This article argues that current case laws are too complex and inconsistent; all the circumstances mentioned above have basically one common feature in that the defendant was not provided the chance to participate without any fault of his/her own; and reopening of the proceedings under the §451 (3) should be the common remedy for all the above circumstances.