[위헌제청신청기각결정][집38(4)민,116;공1991.2.15.(890),578]
In case where it is obvious that a lawsuit for retrial is subject to a judgment of retirement due to the lack of requirements, whether the Act, which is the premise of the merits, becomes the subject of unconstitutionality proposal (negative
Where it is obvious that a lawsuit for retrial will be subject to a judgment on retirement because it fails to meet the requirements for retrial, even if the law, which is the premise of the merits, is the unconstitutionality of the law, the court shall not make a proposal to the Constitutional Court to judge whether the above law is unconstitutional or not.
Article 107(1) of the Constitution of the Republic of Korea; Article 41 of the Constitutional Court Act; Article 425 of the Civil Procedure Act
Man Choi-gu
Seoul High Court Order 90Ka106 Dated August 17, 1990
The reappeal is dismissed.
The grounds of reappeal are examined.
According to the records, Article 53-3 of the Building Act, Article 11, Article 12 of the former Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings, Article 2, Article 9, Article 11, and Article 15 of the former Enforcement Rule of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings, which the Re-Appellant claims that the Re-Appellant is unconstitutional as in the theory of lawsuit, shall not be a law which is the premise of the above judgment, as long as it is apparent that the Re-Appellant was unable to file a lawsuit for review in the judgment of the court below, which is the principal lawsuit of the court below which became the plaintiff, because it was impossible for the court below to obtain a judgment on retirement due to failing to meet the requirements for review, and therefore, the court below is just to determine that the above law cannot be deemed as being unconstitutional as in the theory of lawsuit under Article 192 (1) of the Civil Procedure Act, and it cannot be viewed that the judgment of the court below constitutes grounds falling under Article 412 of the Civil Procedure Act.
Therefore, the reappeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices.
Justices Lee Chang-chul (Presiding Justice)