The costs of appeal shall be assessed against the plaintiff (defendant).

(1) According to the proviso of Article 406(2) of the Civil Procedure Act, a court that received a case from the Re-appeal Court shall be bound by the court of final appeal as a reason for reversal, and in addition, the court of final appeal may not take any other opinion in a same case where it is bound by the legal judgment previously rendered as a reason for reversal.

We examine the reasons for reversal of the Re-appeal Court in this case and the binding relationship of the Appeal Court in turn.

(A) In the Cheongju District Court Panel Decision 70Na56 delivered on September 16, 1970, which is the original court of this case, the plaintiff (the re-appellant) knew that the defendant (the plaintiff) was not residing in Korea because he was absent study from around December 1949, the court below stated the defendant's address in the Cheongju District Court Decision 1959No. 25 delivered the defendant's address to the above court in the Cheongju District Court's 1959Ga25 form of gift subject to this case's review and the claim for the claim for the claim for the claim for the transfer of ownership transfer of land and forest land, the defendant's address was stated in the Cheongju District Court Decision 70Na56 delivered on September 16, 1970, and the plaintiff (the re-appellant) did not constitute a ground for retrial under Article 42 of the Civil Procedure Act's allegation that the plaintiff did not have any defect in the plaintiff's right of attorney at the time of this case's appeal.

In addition, if the plaintiff continued to serve the original of the judgment in the above Cheongju District Court No. 69A25 at the time of the plaintiff's assertion in this case, if the service of the original of the judgment in the above Cheongju District Court was done at a false address, not at the legitimate place of service against the defendant, and the service of the original judgment was legally effective, it is invalid, and thus, the service on the defendant is unlawful, and the defendant is still still in a state of not being served with the original judgment. Thus, the defendant must have known that he returned on April 19, 1969 and filed an appeal with the Panelju District Court at around May 19, 1969, and it is clear that the defendant had been filing an appeal with the above Cheongju District Court at the above appellate court, but the defendant did not do so and confirmed the above judgment formally by withdrawing the above appeal on September 16, 1969, and raised the above facts again in this case, it constitutes a ground for retrial under the proviso of Article 4215 (1) of the Civil Procedure Act.

(B) However, the Supreme Court Decision 70Da2326 delivered on December 22, 1970 rendered a judgment on the ground of appeal No. 1 by the defendant (the plaintiff for a retrial). The above ground of appeal by the defendant is not examined and judged as to whether the defendant's legal representative participated in a lawsuit without the power of attorney. The court below rejected the defendant's allegation that the defendant's legal representative's above ground of appeal was not a ground for a retrial since it was judged that the defendant's legal representative did not participate in the lawsuit without the power of attorney. Thus, if the defendant's legal representative's address was stated at the place where the lawsuit was made, and it was delivered to a person who is not a person who has the authority to receive documents for a lawsuit under the Civil Procedure Act, or to receive documents for a lawsuit under Article 422 (1) 3 of the Civil Procedure Act, the above ground of appeal does not constitute a case where the defendant's legal representative's right of attorney, power of attorney, or agent's right of attorney, and it did not constitute a ground for a retrial.

(C) On December 8, 1971, the Panel Division of the Cheongju District Court which received the above judgment of the court of final appeal, the second-lane 71Na17 delivered on December 8, 1971 (the second-lane judgment was reversed and remanded on the grounds of the merits) was determined on the ground for a retrial in the third-lane original judgment of this case, and it was duly confirmed by evidence that the Cheongju District Court Decision 59Ga25 delivered on July 3, 1959, which was subject to the retrial, was proceeding as alleged by the defendant, and that the said judgment became final and conclusive on July 3, 1959. Accordingly, the above ground constitutes a case where a person who was defective in the power of attorney, powers of attorney, or authority of attorney, received litigation by delivery of documents of lawsuit, and thus, the defendant's request for retrial revoked the judgment of the first instance court which dismissed the lawsuit, and revoked the judgment of this case and dismissed the plaintiff's request for retrial.

(2) Upon examining each of the above decisions, the grounds alleged by the defendant as grounds for retrial in the court of final appeal constitute grounds for retrial under Article 422(1)3 of the Civil Procedure Act. However, even if the defendant filed an appeal on May 19, 1969 through the attorney of the court of final appeal on the grounds that the judgment was reversed due to non-examination and determination, the judgment of Cheongju District Court Decision 59A25 sentenced on June 23, 1959 was made in Cheongju District Court Decision 59A25 decided on June 23, 1959, and was not made final and conclusive at that time because there was no application for failure as prescribed by the old Ordinance of the Civil Procedure Act. In addition, as pointed out in the lawsuit after this final and conclusive judgment, the defendant filed an appeal on the delivery of the original copy of the substitute judgment by the attorney of the court of final and conclusive around September 16, 199.

If so, the court below's decision is to the same effect as the above reasons for reversal in the conclusion of the case, which is remanded to the court below, and it cannot be viewed as justifiable, and even if there were other cases where the Supreme Court judged that the above reasons were not the grounds for retrial as in the other cases where there were similar reasons, as in the theory of lawsuit, it cannot be reversed again by taking the same view as in other cases, as in the above, as in the other cases, which were detained in the reason for reversal. Therefore, under the view that the decision for retrial had not become final and conclusive at the time of the decision for retrial, there is a misunderstanding of the legal principles as to the substitute decision and the application system for breakdown or the time when the decision became final and conclusive, and the defendant raised an appeal against the above decision for retrial, and there were no arguments as to the above grounds for retrial under the proviso of Article 422 (1) of the Civil Procedure Act, and thus, it cannot be argued that there was no illegality in the decision of the court below as in this case, which did not have become final and conclusive.

Finally, Article 426 of the Civil Procedure Act is clearly excluded from the application of a retrial suit based on the lack of power of representation in the same suit as seen in this case. Thus, the defendant's suit for retrial in this case should be dismissed as being illegal even under the premise that it should have been dismissed as being illegal even with the time limit prescribed in Article 426 of the Civil Procedure Act. The grounds for appeal that attack the original judgment should not be dismissed.

For the above reasons, the plaintiff's appeal is all groundless and dismissed, and the costs of appeal are assessed against the plaintiff who has lost. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yang Byung-ho (Presiding Justice)