Open Decision Ledger · Civil procedure & enforcement
Public notice service, failure to check the file, and a withdrawal after finality
Supreme Court, Nov. 25, 2021, 2018Da27393 (judgment)
No holding summary · checked against points at issue. The official text publishes no summary of the holding for this decision. The quotation and factors in this record are copied verbatim from the points at issue; the evidence for each axis is taken from the points at issue, the order and the reasons.
Case name: 사업자명의변경등
Official text on the National Law Information Center
Question
Where service during the proceedings had to be made by public notice and the party failed to investigate the state of the proceedings, may the missed peremptory period be excused under Article 173(1) of the Civil Procedure Act, and what is the effect of a declaration withdrawing the action made after the judgment became final and the proceedings were extinguished?
Holding
It may not. The Supreme Court held that where service during the proceedings is made by public notice, unlike a case run on public notice from the service of the complaint copy, the party has a duty to investigate the state of the proceedings, and a party that misses a peremptory period through failing to do so has no reason beyond its control under Article 173(1) of the Civil Procedure Act. A document whose content disputes the effect of the withdrawal and asks for a hearing may be treated as a request to set a hearing regardless of its title or form, and the court must then open argument and examine the reasons for it. Because the supplementary appeal was improper, the first-instance judgment's finality stood and the proceedings were extinguished; the withdrawal declared afterwards had no object and was void.
Points at issue, verbatim
소송 진행 도중 통상적인 방법으로 소송서류를 송달할 수 없게 되어 공시송달 방법으로 송달하였는데, 당사자가 소송 진행상황을 조사하지 않아 불변기간을 지키지 못한 경우, 이를 민사소송법 제173조 제1항에서 정한 ‘당사자가 책임질 수 없는 사유’라고 할 수 있는지 여부(소극)
Unofficial English translation
Where, during the course of a lawsuit, it becomes impossible to serve court documents by ordinary means and service is effected by public notice, whether the fact that a party failed to check the progress of the lawsuit and consequently failed to observe an invariable period may be regarded as 'a reason for which the party cannot be held responsible' as provided in Article 173, paragraph (1) of the Civil Procedure Act (negative)
Disposition
Dismissed Stated in the decision
상고를 모두 기각한다. 상고비용은 피고들이 부담한다.
Unofficial English translation
All appeals are dismissed. The costs of the final appeals shall be borne by the defendants.
Form of the test
Elements stated Stated in the decision
여기서 말하는 ‘당사자가 책임질 수 없는 사유’란 당사자가 그 소송행위를 하기 위하여 일반적으로 하여야 할 주의를 다하였음에도 불구하고 그 기간을 준수할 수 없었던 사유를 가리킨다
Unofficial English translation
Here, 'a reason for which the party cannot be held responsible' refers to a reason why the party, having exercised the care generally required to perform that act of litigation, was nevertheless unable to comply with that period
Factors
- 소송 진행 도중 통상적인 방법으로 소송서류를 송달할 수 없게 되어 공시송달 방법으로 송달하였는데, 당사자가 소송 진행상황을 조사하지 않아 불변기간을 지키지 못한 경우
- 당사자가 제출한 서면의 내용이 소 취하의 효력을 다투면서 기일지정을 구하는 것인 경우, 법원은 불복신청서의 제목에 구애받지 않고 기일지정신청이 있는 것으로 볼 수 있는지 여부(적극) 및 이때 법원은 변론을 열어 신청사유에 관하여 심리하여야 하는지 여부(적극)
- 판결이 확정되어 소송계속이 소멸한 경우, 소 취하 의사표시의 효력(무효)
Unofficial English translation
• Where, during the course of a lawsuit, it becomes impossible to serve court documents by ordinary means and service is effected by public notice, and a party failed to check the progress of the lawsuit and consequently failed to observe an invariable period
• Where the contents of a document submitted by a party seek the designation of a hearing date while contesting the effectiveness of a withdrawal of the action, whether the court may, without being bound by the title of the application for relief, regard it as an application for designation of a hearing date (affirmative) and whether in such a case the court must open oral argument and examine the grounds for the application (affirmative)
• Where a judgment has become final and conclusive and the pendency of the action has been extinguished, the effect of a manifestation of intent to withdraw the action (void)
Relation to precedent
Follows earlier decisions Stated in the decision
대법원 2012. 10. 11. 선고 2012다44730 판결(공2012하, 1817)
Unofficial English translation
Supreme Court Decision 2012Da44730 decided October 11, 2012 (Gong 2012 Ha, 1817)
Decisions referred to
[1] 대법원 1987. 3. 10. 선고 86다카2224 판결(공1987, 641), 대법원 2012. 10. 11. 선고 2012다44730 판결(공2012하, 1817), 대법원 2018. 4. 12. 선고 2017다53623 판결(공2018상, 886) / [3] 대법원 1978. 9. 12. 선고 76다2400 판결(공1978, 11085), 대법원 1979. 9. 25. 선고 79다505 판결(공1979, 12222)
Burden of proof
Not addressed Not in the decision
Open question and revisit condition
After service by public notice, how far must a party investigate the state of the proceedings before its failure to meet a peremptory period can no longer be excused?
A later decision defining the extent of the duty to investigate the state of proceedings after public notice service, or an amendment to Article 173(1) of the Civil Procedure Act, would require this entry to be read again. Any change in the rules on treating a document as a hearing request under Article 67 of the Rules of Civil Procedure would do the same.
Cross-family AI independent reading & axis check
7 of 8 axes matched GPT-6 Astra (OpenAI, codex CLI) · 2026-10-25
A reader from another model family (GPT-6 Astra), given the official text but not the primary reading, agreed on 7 of the 8 axes; the readings differed on axis 8 (open question and revisit condition).
Axis 8 (Open question and revisit condition): Primary “After service by public notice, how far must a party investigate the state of the proceedings before its failure to meet a peremptory period can no longer be excused?” vs Independent “Would a withdrawal made during a timely and otherwise admissible appeal seeking relief from a missed deadline remain effective?”
The primary reading asks how far a party must investigate proceedings after public-notice service, whereas the independent reading asks whether a withdrawal made during a timely supplementary appeal remains effective.
소송 진행 도중 통상적인 방법으로 소송서류를 송달할 수 없게 되어 공시송달 방법으로 송달하였는데, 당사자가 소송 진행상황을 조사하지 않아 불변기간을 지키지 못한 경우, 이를 민사소송법 제173조 제1항에서 정한 ‘당사자가 책임질 수 없는 사유’라고 할 수 있는지 여부(소극)Raw responses and comparison record: Protocol · Blind readings (JSONL) · Axis comparison (JSONL) · SHA-256 (JSON)
Lower-court contrast & scope of application
Lower-court reading vs. Supreme Court holding
Lower-court context: The Daegu High Court, in its judgment of 30 May 2018 (2013Na1991), held that the defendants had been duly served with the copy of the complaint and the litigation guide, and that their failure to observe the appeal period was caused by their own negligence in not investigating the state of the proceedings, so the supplementary appeal of 26 April 2013 lacked the requirements for a cured act and was inadmissible. It treated the plaintiff's petition of 12 April 2018 as a request to set a hearing, examined the effect of the withdrawal, and held that the withdrawal of 15 October 2013 had been made after the first-instance judgment had become final and the proceedings were extinguished, so it was of no effect. It then dismissed the appeal, leaving the first-instance judgment standing.
Supreme Court standard: The Supreme Court found no error in that reading. It restated that a party who fails to investigate the state of proceedings after service by public notice cannot rely on Article 173(1), that a hearing request needs no document bearing the title or form of such a request and that the court must open argument on its reasons, and that a withdrawal made after finality has no object and is void, so the finality of the first-instance judgment is not displaced. The Justices unanimously dismissed all the appeals and placed the costs on the defendants.
Distinguishing conditions
- A case in which the proceedings ran on public notice from the service of the complaint copy, since the Court treated a mid-stream switch to public notice as different from that case.
- A case in which a lawful supplementary appeal was filed within the period fixed by Article 173 of the Civil Procedure Act, so that the finality of the first-instance judgment is excluded and the action is still pending.
- A withdrawal declared before the judgment becomes final, since withdrawal is possible until that moment under Article 266(1) of the Civil Procedure Act.
Record verification notes
Fix the service history first: note the date of ordinary service, the date of public notice and the date its effect arose, and ask whether the party knew of the proceedings at the earlier date. Then check whether any act within two weeks of the cause ceasing was filed. Finally, compare the document said to be a withdrawal with the date the judgment became final, and read the petition against the hearing request point, since the Court looked to the content rather than the title.
From the official text
Points at issue
[1] 소송 진행 도중 통상적인 방법으로 소송서류를 송달할 수 없게 되어 공시송달 방법으로 송달하였는데, 당사자가 소송 진행상황을 조사하지 않아 불변기간을 지키지 못한 경우, 이를 민사소송법 제173조 제1항에서 정한 ‘당사자가 책임질 수 없는 사유’라고 할 수 있는지 여부(소극) [2] 당사자가 제출한 서면의 내용이 소 취하의 효력을 다투면서 기일지정을 구하는 것인 경우, 법원은 불복신청서의 제목에 구애받지 않고 기일지정신청이 있는 것으로 볼 수 있는지 여부(적극) 및 이때 법원은 변론을 열어 신청사유에 관하여 심리하여야 하는지 여부(적극) [3] 판결이 확정되어 소송계속이 소멸한 경우, 소 취하 의사표시의 효력(무효)
Unofficial English translation
[1] Where, during the course of a lawsuit, it becomes impossible to serve court documents by ordinary means and service is effected by public notice, whether the fact that a party failed to check the progress of the lawsuit and consequently failed to observe an invariable period may be regarded as 'a reason for which the party cannot be held responsible' as provided in Article 173, paragraph (1) of the Civil Procedure Act (negative) [2] Where the contents of a document submitted by a party seek the designation of a hearing date while contesting the effectiveness of a withdrawal of the action, whether the court may, without being bound by the title of the application for relief, regard it as an application for designation of a hearing date (affirmative), and whether in such a case the court must open oral argument and examine the grounds for the application (affirmative) [3] Where a judgment has become final and conclusive and the pendency of the action has been extinguished, the effect of a manifestation of intent to withdraw the action (void)
Summary of the holding
The official text publishes no summary of the holding for this decision. The quotation and factors in this record are copied verbatim from the points at issue; the evidence for each axis is taken from the points at issue, the order and the reasons.
Order
상고를 모두 기각한다. 상고비용은 피고들이 부담한다.
Unofficial English translation
All appeals are dismissed. The costs of the final appeals shall be borne by the defendants.
Provisions referred to
[1] 민사소송법 제173조 제1항 [2] 민사소송규칙 제67조 [3] 민사소송법 제266조 제1항
Read 2026-10-25 · Cross-read 2026-10-25. All quotes matched against the official text. The Chinese-character placeholders the court used for anonymised parties are given in their Korean readings, and parenthetical Chinese-character glosses are omitted.
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