[소유권이전등기말소등][집28(3)민,37;공1980.11.1.(643),13164]
The method of determining whether a conviction of perjury has an effect on the conclusion of a final and conclusive judgment;
In order to determine whether a witness who made a testimony adopted in the final and conclusive judgment subject to retrial has no influence on the result of the final and conclusive judgment even if the testimony of the said witness is excluded, the evidence cited in the final and conclusive judgment prior to the retrial and each evidence examined in the retrial lawsuit shall also be considered as materials for the determination, and it shall be determined that only the evidence cited in the final and conclusive judgment prior to the retrial does not affect the conclusion of the final and conclusive judgment
Article 422(1)7 of the Civil Procedure Act
[Defendant-Appellee] Attorney Kim Gyeong-il et al.
Lee Jin-do et al., Counsel for the defendant-appellant
Seoul High Court Decision 74Na13 delivered on February 21, 1980
The original judgment is reversed and the case is remanded to the Seoul High Court.
The grounds of appeal No. 2 by the defendant (Plaintiffs on review) are examined.
According to the reasoning of the judgment of the court below, the court below held that the testimony of the non-party witness who was sealed as evidence of the final judgment subject to retrial was recognized as perjury and the judgment of conviction against the same person was finalized, and that the defendant (the plaintiff) filed a lawsuit for retrial of this case on May 17, 1974 and 5.18 of the same year, but even if the witness issued a perjury, if it is recognized that the judgment to review is justifiable because the result of the judgment is not affected by the judgment, the request for retrial is not reasonable, and even except the testimony of the above non-party, if considering all the evidence cited in the judgment of the appellate court prior to this case, it can be sufficiently recognized that the forest land is owned by the plaintiff (the defendant) and that there is no possibility to conclude any conclusion different from the final judgment subject to retrial
However, according to the records, evidence Nos. 11-2 (Forest Survey Book), evidence Nos. 12-12 (No. 13-2 (each judgment), evidence Nos. 14-1, 14-2 (each judgment), and evidence Nos. 15 (Judgment), etc. (each document No. 15, Jun. 15, 1979; a criminal record No. 12-3, Dec. 3, 1979) presented favorable to the defendant (the plaintiff) are examined as new evidence in this lawsuit. Thus, the court below should have determined that the testimony of the non-party witness who was adopted at the final judgment of this case was not affected by the new trial without any influence on the conclusion of the final judgment. Thus, the court below should have determined that the non-party witness's testimony at the above final judgment of this case should not affect the conclusion of the final judgment, and it should have determined that the new trial had no effect on the evidence of this case before the final judgment, and it should have determined that the new trial had no effect on the evidence of this judgment.
Therefore, the original judgment is reversed, and the case is remanded to the Seoul High Court, which is the original judgment, and it is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Kim Tae-tae (Presiding Justice)