[법인세등부과처분취소][공1991.10.1.(905),2374]
Whether there can be grounds for a retrial of the original judgment, where there is a deviation from a judgment subject to a retrial or a previous judgment subject to a retrial (negative)
The reason why there is a deviation from the judgment subject to a retrial or the previous judgment subject to a retrial cannot be a ground for retrial of the said judgment.
Article 8(2) of the Administrative Litigation Act, Article 422(1) of the Civil Procedure Act
[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Jae-soo, Attorneys Park Jae-soo et al., Counsel for plaintiff-appellant)
Newly Inserted by Act No. 1071, Dec. 1
Head of Yeongdeungpo Tax Office
Supreme Court Decision 87Nu551,552 delivered on January 17, 1989, Supreme Court Decision 89Nu38 delivered on November 13, 1990
The request for retrial is dismissed.
The litigation costs for retrial shall be borne by the plaintiff.
(1) On January 17, 1989, the plaintiff (the plaintiff, hereinafter referred to as "the plaintiff") declared that the above judgment was a decision for retrial, and that the plaintiff (the plaintiff, hereinafter referred to as "the plaintiff) declared that the decision for retrial was a decision for retrial, and that the above judgment was dismissed as a decision for retrial, and that the plaintiff filed a request for retrial of this case. Thus, whether there was a ground for retrial exists such ground for retrial.
(2) A request for retrial in an administrative litigation may be filed only when there are grounds for retrial under Article 422(1) of the Civil Procedure Act, which is applicable mutatis mutandis under Article 8(2) of the Administrative Litigation Act.
According to the records, among the original judgment, 89Nu38 delivered on November 13, 1990 among the original judgment, the Supreme Court Decision 87Nu551,552 delivered on January 17, 1989, which was the original judgment, held that there was a omission of judgment as alleged by the plaintiff. Thus, the Supreme Court Decision 89NuNu38 delivered on November 13, 1990 cannot be deemed as falling under the grounds for retrial under Article 422(1)9 of the Civil Procedure Act, which is the grounds for retrial under Article 422(1)9 of the Civil Procedure Act, and the grounds for the omission of judgment or the previous original judgment cannot be the grounds for retrial of the original judgment.
(3) Under Articles 426(1) and 427 of the Civil Procedure Act, which are applicable mutatis mutandis by Article 8(2) of the Administrative Litigation Act, a suit for a retrial shall be instituted within 30 days from the date on which the party becomes aware of the cause for the retrial after the judgment became final and conclusive, in addition to a suit for a retrial on the grounds of lack of power of representation or the matters specified in Article 422(1)10
According to the records, among the judgment subject to a retrial of this case, 87Nu551,552 delivered to the plaintiff's agent on January 28, 1989, and on February 8, 1989, the plaintiff filed a lawsuit for retrial by citing that there was a deviation of judgment from the judgment on February 8, 1989 as grounds for retrial. The plaintiff was aware of the grounds for asserting that it was a deviation of judgment during January or February 1989. Thus, in this case filed on December 3, 190, it cannot be asserted as grounds for retrial.
(4) Furthermore, upon examining these records, the judgment of the court below 89Nu51,552 delivered on Nov. 13, 1990 held that there was a omission of judgment in the judgment of the court below, which was the original judgment and the original judgment of this case, and that the plaintiff's ground of appeal as to the omission of judgment was dismissed by finding that there was no grounds for appeal by the plaintiff as to the part of the omission of judgment. Thus, the judgment of the court below cannot be said to be an omission of judgment, and it cannot be said that there was a omission of judgment, and that there was a failure of judgment as to the plaintiff's main judgment, since it did not explain the grounds for rejecting the plaintiff's assertion on a daily basis.
(5) Therefore, the grounds for appeal for retrial cannot be a legitimate ground for retrial. Therefore, the retrial of this case is dismissed, and the costs of 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 Jae-sung (Presiding Justice)