The meaning of the time when the grounds for retrial under the proviso of Article 422(1) of the Civil Procedure Act are not known and alleged.
The term "when the parties did not know the existence of the grounds for a retrial" under the proviso of Article 422 (1) of the Civil Procedure Act includes not only the cases where the parties filed an appeal despite the knowledge of the existence of the grounds for a retrial, but also the cases where the judgment became final and conclusive because they did not file an appeal.
Article 422(1) of the Civil Procedure Act
Patent Attorney Han-hwan et al., Counsel for the plaintiff-appellant Kim Jin-jin
The Commissioner of the Korean Intellectual Property Office
On May 31, 1984, the Korean Intellectual Property Trial Office rendered a ruling on the review of appeal in 1983.
The appeal is dismissed.
The costs of appeal shall be assessed against the appellant.
On the other hand, it is evident that the trial decision subject to a retrial of this case has become final and conclusive without filing an appeal as the trial decision of the case No. 725 dated December 29, 1982 by the Korean Intellectual Property Office High Court High Court High Court Decision No. 725 dated December 29, 1982. According to the proviso of Article 422(1) of the Civil Procedure Act, which applies mutatis mutandis to the request for a retrial against a trial decision of an appeal finalized under Article 136(2) of the Patent Act, if a party claims grounds for retrial or fails to know thereof, it is impossible to bring an action for retrial. In addition, the term "when the party did not know of such grounds for retrial" under the proviso of Article 422(1) of the Civil Procedure Act means not only where the party did not assert it in the appellate court while filing an appeal despite having known the existence of the grounds for retrial, but also where the judgment (the trial decision in this case) becomes final and conclusive due to the lack of special circumstances to view it as an original judgment.
Therefore, the appeal claimant was aware of the rejection of the judgment as a ground for retrial in this case due to no special circumstance, and the service of the original copy of the trial decision subject to retrial was not known, and the appeal cannot be filed on the ground that it constitutes a case where he did not assert it by appeal even though he was aware of it. Thus, the conclusion of the decision of the court below dismissing the request for retrial is justified in this respect.
Therefore, the appeal is dismissed on the grounds that it is unnecessary to enter into the judgment on the grounds of appeal, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating
Justices Yoon Il-young (Presiding Justice) Gangwon-young Kim Young-ju
- 민사소송법 제422조 제1항 (위헌조문)