2. Of the costs of retrial, the part resulting from participation in the costs of retrial shall be borne by the Intervenor joining the Defendant, and the remainder by the Defendant (Plaintiff seeking retrial).

The defendant (hereinafter the defendant) will implement the procedure for change of the name of the owner on March 20, 199 with respect to the building permit stated in the attached list to the plaintiff (the plaintiff for review; hereinafter the plaintiff) on the construction permit stated in the attached list.

2. Purport of appeal and request for retrial

The judgment subject to review and the judgment of the first instance are revoked. The plaintiffs' claims are dismissed.

The following facts are clear in records:

A. On May 29, 2003, the Plaintiff Young assistant Construction Co., Ltd. and the deceased non-party 2 (the non-party 2 died on December 18, 2009 and his wife took over the lawsuit of this case) filed a lawsuit in the first instance trial against the Defendant (the non-party 2 was changed to the post cargo terminal as of November 15, 1995, but it was changed to the trade name as of June 15, 200) against the Defendant (the non-party 2 was changed to the post cargo terminal as of June 15, 200).

B. The defendant filed an appeal against the judgment of the court of first instance on September 15, 2003 and proceeded with the pleadings. On October 22, 2004, the defendant submitted a written withdrawal of appeal to this court in the name of the non-party 3, which was the representative director of the defendant, and on October 25, 2003, the non-party 4 and the non-party 5 attorney-at-law, who was the representative of the defendant, submitted the resignation system.

C. However, on December 30, 2004, the defendant asserted that the non-party 1, who was a manager of the defendant, has stolen the official seal of the representative director without the consent of the non-party 3 where the representative director was the representative director, and filed an application for the designation of the date for pleading.

D. On August 16, 2005, at the end of the trial by opening the oral argument, Nonparty 1, who was the representative director of the defendant, was the non-party 3 and the manager of the defendant on August 16, 2005, prepared a letter of withdrawal of appeal and a letter of delegation of submission, and submitted it to this court through the non-party 6, with the seal of the defendant's corporate seal affixed to the defendant's corporate seal on October 22, 2004. According to the facts of recognition, it is reasonable to deem that the above letter of withdrawal of appeal was completed based on the non-party 3's intention, which was the representative director of the defendant at the time of the defendant's filing of the appeal (Re

E. The defendant filed a final appeal with the Supreme Court (2005Da51419) and added the claim that the withdrawal of the above appeal was made based on the intention of the defendant's representative director's breach of trust against the defendant, the non-party 3, etc., and thus constitutes a juristic act contrary to social order under Article 103 of the Civil Act. However, on January 27, 2006, the Supreme Court made the withdrawal of the above appeal by the non-party 3, the representative director of the defendant, and the argument added in the final appeal was made on January 27, 2006 by the true will of the non-party 3, who is the representative director of the defendant.

2. Grounds for retrial and determination thereof

A. The defendant's assertion

In the appellate court, Nonparty 1, the actual representative of the defendant, submitted the above written withdrawal of appeal. At that time, Nonparty 2 already agreed to receive KRW 1 billion from Nonparty 2 and submitted the above written withdrawal of appeal, and Nonparty 1 was convicted of this fact after the judgment for retrial became final and conclusive, and Nonparty 1 was subject to criminal punishment for occupational breach

Therefore, there exists a ground for retrial under Article 451(1)5 of the Civil Procedure Act that constitutes “when a person makes a confession, or is obstructed in submitting means of offence and defense that may affect the judgment, due to an act committed by another person subject to criminal punishment,” in the judgment subject to retrial, and as long as there exist such grounds for retrial, an appeal which is a litigation that constitutes the cause of retrial is null and void. Therefore, the judgment subject to retrial and the judgment of the first instance court are revoked

(b) Fact of recognition;

(1) The “building stock transfer statement” (No. 10) prepared in the name of the Defendant attached to the instant complaint was made on March 20, 1999 on the date of its preparation, which is March 20, 199, the transferor, the Defendant, the transferee, the Plaintiff Company, and Nonparty 2. The content thereof is that the transferee, the transferee, the Seocho Cargo Terminal Co., Ltd. (the representative director Nonparty 7) transfers 34,00 shares of the non-registered building and the non-party 2’s shares of the Seocho Cargo Terminal, which are constructed in Sinsi-dong, Sinsi-dong.

(2) In the case of violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud), including the Incheon District Court 2006Da372, Feb. 15, 2008, the non-party 2 forged the certificate of transfer of building shares under the above Paragraph (1) without authority to exercise the first patrol force on Nov. 1, 2001, and submitted it to the complaint on May 29, 2003 (a private document forgery and use of investigation documents), and the non-party 2 and the non-party 1 conspired with the defendant on Oct. 22, 2004, the non-party 2 did not request the actual representative director at the time of the defendant to withdraw imprisonment by November 10, 200, and the non-party 1 did not receive the above order of transfer of building shares under the above Paragraph (1) by submitting it to the defendant for the purpose of exercising the right to use the above name of the owner and did not cause property damage to the defendant. The judgment of the Seoul High Court 100th trial was accepted.

(3) In the Seoul High Court case 2008No713, the appellate court sentenced on December 18, 2008 that the “building stock transfer certificate” under the above Paragraph (1) among the facts charged against the deceased non-party 2 was prepared on the basis of the intention of the non-party 7. The judgment of innocence was rendered on the charge of forging private documents and the uttering of each investigation document. As to the crime of occupational breach of trust of non-party 2 and non-party 1, it was found that the non-party 2 and the non-party 1 promised to pay KRW 1 billion in return for the withdrawal of appeal on October 20, 2004, and it was found that the non-party 1 promised to pay KRW 1 billion to the non-party 2 in return for the withdrawal of appeal (However, the suspended sentence of imprisonment for 1 year and the imprisonment for 2 years for the non-party 1 was sentenced to a total of 2 years). This judgment became final and conclusive as the final appeal by the Supreme Court Decision of May 28, 2009Do322.

[Reasons for Recognition] Facts clear or without dispute on records, Gap evidence 10, 16, Eul evidence 19, 20, and 21, the purport of the whole pleadings

C. Determination

The withdrawal of an appeal against the judgment of the court of first instance, which was made by the defendant against the whole judgment of the court of first instance, may be deemed to have corresponded to a confession in the case where the appeal was withdrawn after the appeal was filed by the defendant, and the substantial representative director of the company violated his duties for his own interest or for the benefit of a third party, and thus, the withdrawal of an appeal against the judgment of the court of first instance, which was wholly rejected by the company, can be deemed to have reached a confession by the act of another person's breach of trust. However, since the judgment of conviction against the withdrawal of the above appeal constituted a crime of occupational breach of trust against the defendant by the non-party 2 and the defendant's actual representative director, there is a ground for retrial corresponding to the

3. Whether the withdrawal of the appeal of this case is legitimate

(a) Facts of recognition;

According to the records of this case, on October 204, the non-party 2 signed an agreement on the withdrawal of the appeal between the non-party 1 and the non-party 2, who is the actual representative director of the defendant, and promised to pay KRW 100 million for the withdrawal of the appeal to the non-party 1 by November 10, 204. At the same time, the non-party 2 signed an application for the change of the name without any separate notice as the owner's seal impression was affixed to the non-party 1 and the non-party 2 signed an application for the change of the name. The non-party 4 and the non-party 2 agreed to change the name of the owner of the building and the non-party 2's name. The non-party 3 and the non-party 1, who was the non-party 6, who was the defendant's representative director, to submit the above written consent for the change of the name of the non-party 1 and the non-party 1, who was the non-party 2's representative.

B. Determination

Even in a case where a litigation is conducted due to an act of another person subject to criminal punishment and a conviction is finalized against that other person's act, the validity of the litigation cannot be denied at all times, and it is reasonable to interpret that the validity can be denied only when it can be assessed that the litigation is only externally without the intention corresponding thereto (see Supreme Court Decision 82Meu963 delivered on May 29, 1984).

As seen in the above facts, the non-party 3 and the non-party 1 accompanied together and returned to the attorney's office to prepare the above written withdrawal of appeal and the letter of delegation affixed with the seal of each defendant's corporate seal. The non-party 3 did not appear before the non-party 6 who was designated as the submission agent of the above written withdrawal of appeal submitted to the court in this court. However, it appears that the non-party 1 designated the submission agent of the written withdrawal of appeal in advance as the defendant's manager, and accordingly, as long as the non-party 6, who is the submission agent, submitted the written withdrawal of appeal to this court, it is reasonable to view that the non-party 3 and the manager who was the actual representative director at the time of the above filing of appeal, was done based on the non-party 1's decision.

Meanwhile, Nonparty 1, the actual representative director of the defendant, promised to receive KRW 1 billion from Nonparty 2 and withdrawn the appeal, and such withdrawal of appeal is based on the intention of occupational breach of trust, and the judgment of conviction became final and conclusive. However, the appellant’s withdrawal of appeal against the appellate court is a unilateral single act in the lawsuit of withdrawing the request for a trial by filing an appeal against the appellate court, and is a litigation against the appellant’s court. The representative director or manager of the corporation has the authority to conduct all judicial or extra-judicial acts pertaining to the company’s business (Articles 389(3), 209, and 11(1) of the Commercial Act). The preparation and submission of the written withdrawal of appeal by Nonparty 3 or Nonparty 1, the representative director of the defendant’s law, or the manager of the corporation, shall be deemed to have been based on his free decision-making according

Therefore, even if the purpose of Nonparty 1’s submission of the written withdrawal of appeal is to promote his own interest, it is merely an internal motive, and the intent of withdrawal of appeal, which is consistent with the procedural acts revealed out of the outer scope, was actually existed. Furthermore, in the case of this case where Nonparty 3, the legal representative director, knew of Nonparty 1’s intent of breach of trust, it shall be deemed that there was an act of withdrawal of appeal as a valid procedural act ( even if the act exceeds the scope of the representative director’s power of representation, if the act falls within the scope of the company’s power of representation, it shall be deemed that the act committed by the representative director within the scope of the company’s power of representation is valid as an act of the company even if the representative director abused his authority for the purpose of pursuing his own or a third party’s interest regardless of the company’s profit, and the same applies to the act of withdrawal of appeal of this case. However, in the case of a judicial act, if the other party to the act knew or could have known, it shall not be applied to the company (see Supreme Court Decision 2004Da3636, etc.).

4. Conclusion

Therefore, the appeal of this case is lawful, and the lawsuit of this case is already terminated. The decision subject to a retrial that declared the termination of a lawsuit is justifiable in its conclusion, and thus, the request for retrial of this case is dismissed in accordance with Article 460 of the Civil Procedure Act. It is so decided as per Disposition.

[Attachment]

Judges Han-chul (Presiding Judge)

Note 1) However, Nonparty 1 was prosecuted as various facts charged including the above facts charged.

2) Therefore, the defendant's assertion that the "building share transfer certificate" (Evidence A 10) under the name of the non-party 7, the representative director of the defendant, who was submitted by the plaintiffs as the defendant's certificate of facts constituting the ground for the first instance court, was forged