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(영문) 대법원 1970. 3. 10. 선고 67무2 판결

[매매계약취소][집18(1)행,045]

Main Issues

judgment evasion refers to the time the judgment (whether legitimate) is not indicated on the method of attack and defense that affect the conclusion of the judgment.

Summary of Judgment

The omission of judgment refers to a case where the judgment is not indicated on the means of attack and defense that affect the conclusion of the judgment, and even if there are errors in the contents of the judgment, it cannot be said to be a

[Reference Provisions]

Article 422 of the Civil Procedure Act

Reference Cases

November 30, 1964No11 delivered on November 30, 1964

Plaintiff, Appellant Defendant

Plaintiff

Defendant, Defendant for retrial

Minister of Finance and Economy

original decision

Supreme Court Decision 66Nu145 Delivered on December 23, 1966

Text

The retrial lawsuit is dismissed.

Expenses for reexamination shall be borne by the plaintiff for reexamination.

Reasons

Judgment on the first ground for retrial of Kim Jong-soo and Dong Kim Jong-sung

The judgment of party members of the previous suit (case No. 66Nu145) held that "In the judgment on the second ground of appeal No. 2 (Attorney Kim Jong-ok's ground of appeal No. 2), the court below's decision is lawfully rejected as to the fact that "other than the witness's testimony referring to the witness No. 1, 2, and 3 on the condition that the transfer of rights between the plaintiff and the Sung-sung Foundation should be approved," and the supplementary intervenor's statement 6Nu145 case No. 66No. 145, the court below's decision of the previous suit No. 66Nu145, which is the court below's decision, it is hard to say that the court below's decision that the plaintiff's testimony and the second ground of appeal No. 2 (the above rejected witness No. 2 and 3's testimony and evidence) did not affect the plaintiff's previous decision's rejection of the evidence of the previous suit No. 1, the court below's decision that rejected the evidence of the previous suit No. 2 was justified.

Judgment on the second ground for a retrial of Dong Kim Jong-soo and Kim Jong-Jap.

In the judgment on party members of the previous suit (Law No. 66Nu145) of the grounds of appeal No. 4 (Law No. 65Nu866), it appears that the second judgment of remand in the previous suit, “In the previous suit, the purport of this case’s second judgment is to impair the order in disposal of property devolving upon the Plaintiff’s purchase of the stocks purchased prior to the acquisition of ownership, and to transfer them to another person,” and even if the authorities knew such fact and concluded a sexually, it cannot be viewed that the purport of the right to cancel the sale contract is to waive the right to cancel the sale contract of the stocks devolving upon the Plaintiff. In accordance with the judgment of remanding the above purport, the court below did not err in cancelling the sale contract of the stocks devolving upon the Plaintiff’s sale.” Since according to the above judgment of remand (Supreme Court Decision 65Nu86) attached to the records, it cannot be viewed that the sale contract of the stocks devolving upon the Plaintiff’s purchase of the stocks to be transferred prior to the acquisition of ownership, and that there is no justifiable reason to cancel the sale contract of the stocks devolving rights under the Act.

Judgment on the first and fourth grounds for supplementary review of the plaintiff in retrial.

1. The summary is that even if the waiver of the right to purchase the purchase price constitutes a violation of the Act on the Disposal of Property Belonging to Ownership, a transfer contract with the Plaintiff’s Seongdong University Foundation is not valid, and the Plaintiff’s acceptance of the transfer price was made in the law-abiding spirit for which the Plaintiff seeks prior approval from the government authorities, and the Supreme Court has neglected its decision;

2. 66Nu145 delivered on the ground of appeal as to the interpretation of Article 7 of the Enforcement Decree of the Act on the Disposal of Property Belonging to the State. Thus, the time when the judgment was omitted on important matters that may affect the judgment under Article 422 (1) 9 of the Civil Procedure Act refers to the case where the parties fail to indicate the judgment among the reasons of the judgment as to the facts that naturally affect the conclusion of the judgment by means of an attack and defense which were submitted in a lawsuit, and even if there were errors in the contents of the judgment, they cannot be viewed as an omission of judgment under the above Act. (See Supreme Court Decision 64Nu11 delivered on November 30, 1964) If the above reasons were reviewed by comparing them with the original records, it cannot be viewed that there was a omission of judgment since the judgment was judged on the matters on which the arguments were asserted in the judgment to review (see Supreme Court Decision 66Nu145 delivered on November 30, 1964). However, it is not acceptable, but it is therefore unreasonable.

Although it is possible to accept the appeal, it cannot be viewed as a failure to make a judgment as seen above. Therefore, all arguments are groundless.

Judgment on the second and third grounds for the supplement of the plaintiff in review.

The summary thereof

1. The Supreme Court precedents held that the conditional sale of the property devolving upon the State was effective, and the Supreme Court precedents held that the sale of the property devolving upon the State was unlawful on the grounds of the facts prior to the conclusion of the sale contract, which contravenes the past precedents.

2. The Supreme Court Decision (66Nu145) is inconsistent with the interpretation of the law different from 63Nu23 and the interpretation of the law. If the grounds for the above grounds for a retrial fall under Article 422(1)1 of the Civil Procedure Act, it is clear in the record that the period for filing a petition for retrial under Article 426 of the Civil Procedure Act has expired, and there is no reason. If the grounds for a retrial under Article 422(1)10 of the Civil Procedure Act are in conflict with the final and conclusive judgment rendered before the judgment to institute the retrial under Article 422(1)10 of the Civil Procedure Act, it can be deemed grounds for retrial if it conflicts with the final and conclusive judgment rendered before the final and conclusive judgment to institute the retrial was rendered, and it is for the purpose of resolving conflicts with the res judicata effect of the final and conclusive judgment rendered before the judgment to institute the retrial. Therefore, the above grounds for retrial

Upon review of the record, each of the above grounds for retrial cannot be viewed as a corresponding reason under Article 422 (1) 10 of the Civil Procedure Act, and it does not constitute any other reason under Article 422 (1) 10 of the Civil Procedure Act, and all of

Therefore, the litigation for retrial is dismissed. It is so decided as per Disposition by the assent of all participating Justices.

Supreme Court Judge Yang Byung-ho (Presiding Judge)