[2] In a case where Gap filed a request for retrial on the ground of Article 451 (1) 1 of the Civil Procedure Act because it was decided by a panel composed of less than two-thirds of all Justices, even though the decision subject to retrial was either to modify an opinion in the previous Supreme Court decision or to acknowledge that the order or rule was in violation of the Constitution or the law, the case holding that the lawsuit for retrial is unlawful on the ground that, since the petition for retrial submitted by Gap does not include any assertion as to the grounds for retrial under subparagraph 1, and it is obvious that Gap received the court a supplementary statement of the grounds for the retrial (grounds for retrial) stated in subparagraph 1 of the above 30-day peremptory period, and it is obvious that the supplementary statement of the grounds for retrial (grounds for retrial) was received by the court, since the judgment subject to retrial was served to Gap'

In accordance with Article 451(1) and (2) of the Civil Procedure Act, a lawsuit for a retrial shall be instituted within a peremptory period of 30 days from the date when the party becomes aware of the grounds for retrial after the judgment became final and conclusive. Barring any special circumstance, the grounds for retrial under Article 451(1)1 of the same Act was known of the existence of the grounds for retrial due to the party’s knowledge of the illegality in the composition of the judgment court when the party was served with the original copy of the judgment (see Supreme Court Decision 4290Du293, Aug. 24, 1961). In addition, in a case where there is a legal representative, unless there are special circumstances when the judgment was served on the legal representative, the party shall be deemed to have been aware of the existence of the grounds for retrial. Thus, the period of a lawsuit for retrial shall continue from the time when the legal representative was served with the original copy of the judgment (see Supreme Court Decisions 87Nu732, Dec. 27, 1988; 93Da393930, etc.

The plaintiff (hereinafter "the plaintiff") made a request for retrial on September 20, 201, on the ground that the judgment subject to retrial was rendered by a panel composed of less than two-thirds of all Justices, even though the decision subject to retrial changes the opinion of the previous Supreme Court decision, or orders or rules were found to be in violation of the Constitution or laws. However, according to records, the judgment subject to retrial was served on the plaintiff's legal representative on December 15, 2009. Thus, the plaintiff was deemed to have known the existence of the above grounds for retrial. The petition of retrial of this case submitted by the plaintiff on January 13, 2010 did not include any assertion of the grounds for retrial as stipulated in subparagraph 1, and it should be done with the peremptory period of the above 30 days, and it cannot be deemed unlawful after the lawsuit of this case was received by the court on September 20, 2010 (the grounds for retrial) as stated in the grounds for a request for retrial under subparagraph 1 of the above subparagraph.

Therefore, the suit of this case is dismissed, and the costs of the retrial are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Sang-hoon (Presiding Justice)