[소유권이전등기말소][집12(2)민,098]
Withdrawal of a lawsuit by fraud or mistake and revocation of litigation.
The provisions concerning legal acts under the Civil Act shall not apply to the procedural acts under the Civil Procedure Act, unless there exist any special provisions or special circumstances, so the procedural acts such as withdrawal of lawsuit, etc. may not be revoked on the grounds of fraud or mistake
Article 239 of the Civil Procedure Act, Article 109 of the Civil Act, Article 110 of the Civil Act
Kim Jong-young
Kimok-ju
Seoul High Court Decision 63Na397 delivered on December 20, 1963, Decision 63Na397 delivered on December 20, 1963
The appeal is dismissed.
The costs of appeal are assessed against the plaintiff.
The plaintiff's grounds of appeal are examined as follows. The provisions concerning legal acts under the Civil Procedure Act should not be applied to the acts of litigation under the Civil Procedure Act, unless there are special provisions or other special circumstances to the effect that the acts of litigation to withdraw a lawsuit or appeal have been conducted by legitimate parties, so long as the acts of litigation to withdraw such lawsuit or appeal have been done by legitimate parties, it shall be impossible to cancel the above acts of litigation pursuant to Article 109 or 110 of the Civil Act on the ground that there are errors in the part of other parties' deception in withdrawing the lawsuit or appeal, or in the important part of the contents of the juristic act, and thus, it shall be impossible to cancel the above acts of litigation pursuant to Article 109 or 110 of the Civil Act on the ground that the original judgment was rendered against the plaintiff on April 23, 1963 after the plaintiff filed a lawful appeal on May 15, 1963. Furthermore, the conclusion that the plaintiff's withdrawal of the appeal cannot be accepted on the sole basis that the plaintiff's withdrawal of the original judgment did not exist for the plaintiff's withdrawal of the original intent.
Therefore, the appeal is dismissed without merit. The costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices of the Supreme Court (Presiding Judge) Mag-kim Kim-bun and Magman