[소유권이전등기말소][집12(1)민,086]
The reasons for non-prosecution of the prosecutor’s document under Article 422(2) of the Civil Procedure Act include: (a) a suspect not guilty of a crime; (b) a document stating that the document was forged by someone; or
The term "a final and conclusive judgment of conviction" other than the defects of evidence referred to in paragraph (2) of this Article refers to cases where it is extremely impossible to institute a public prosecution, or the examination of a public prosecution cannot be conducted due to the death of the defendant, the completion of the statute of limitations or the mental failure of the defendant, etc., or where it is the same time as the case where it is impossible to do so, and it does not constitute a case where the document contains no suspicion of crime against the suspect in the reasons for non-prosecution of
Article 422(2) of the Civil Procedure Act
Edives
Korea
Kim Yong-type
Daegu District Court Decision 63Hun-2 delivered on November 1, 1963, Daegu High Court Decision 201Na148 delivered on November 1, 201
The appeal is dismissed.
The costs of appeal shall be borne by the plaintiff for retrial.
The gist of the grounds of appeal by the defendant's attorney
(1) In this case, the fact that Gap evidence No. 7, which was cited in the final judgment, was forged is obvious, and if it is not known who is forged, it constitutes a case where the final judgment of conviction cannot be rendered due to reasons other than the lack of evidence as referred to in Article 422(2)6 of the Civil Procedure Act. However, the original judgment which dismissed a retrial on the contrary opinion by the court below erred in interpreting the above legal provisions, and (2) the original judgment did not ex officio decide whether the land was transferred to the bureaucination and whether the building on the spot was farming or not (in particular, there is a trace of the assertion that the Minister of Agriculture and Forestry did not follow the transfer procedure from the control office to the control office).
In light of the above, when it is impossible to render a final judgment of conviction for reasons other than the defects of evidence under Article 422 (2) of the Civil Procedure Act, the time when the defendant cannot bring a public prosecution or cannot proceed with the deliberation of the public prosecution instituted by the defendant due to the completion of the statute of limitations or mental failure of the defendant's mental failure, etc. should be stated the same time. As for the reasons for non-prosecution of the documents in the above Article of the public prosecutor's document like this case, there is no suspicion of crime against the suspect, but the document is forged by the group, and it cannot be viewed that the document constitutes a time when it is impossible to bring a conviction due to reasons other than the so-called defects of evidence under Article 422 (2) of the Civil Procedure Act. Thus, the original judgment dismissing a new trial on the same opinion is just, and therefore, it cannot be said that there is a reason for the court to render a voluntary trial of the fact that there is no issue between the parties in the civil procedure, and even if examining detailed records in detail, there is no reason to see the above.
Therefore, it is so decided as per Disposition by the assent of all participating Justices.
Justices Han Sung-dong (Presiding Judge) of the Supreme Court