[소유권이전등기][공1982.11.1.(691),908]
The burden of proving the grounds for which a conviction cannot be rendered against the testimony that became evidence of the judgment subject to a retrial.
In a case where the witness's false statement was considered as evidence of the judgment, if it is impossible to obtain a conviction of perjury due to the expiration of the statute of limitations, it would have been possible to obtain a conviction of perjury in the absence of only the grounds for expiration of the statute of limitations.
Articles 422(1)7 and 422(2) of the Civil Procedure Act
Supreme Court Decision 66Da308 Decided April 19, 1966, Supreme Court Decision 80Da2662 Decided October 27, 1981
[Judgment of the court below]
Defendant (Re-Appellant) (Attorney Na-ho et al., Counsel for defendant-appellant)
Seoul High Court Decision 81Na13 delivered on December 10, 1981
The appeal is dismissed.
The costs of appeal shall be borne by the plaintiff (defendant).
The grounds of appeal by the Plaintiff (Re-Appellant, hereinafter only referred to as the Plaintiff) attorney are examined.
In a case where the witness's false statement under Article 422 (1) 7 of the Civil Procedure Act is considered as evidence of the judgment, if it is impossible to obtain a final judgment of conviction for reasons other than lack of evidence, it shall be proved that he could have received a final judgment of conviction for reasons other than the defect of evidence, i.e., death, amnesty, or the expiration of the statute of limitations, in the absence of such reasons as the death of an offender, i.e., the requester for a retrial (see, e., Supreme Court Decision 80Da2662, Oct. 27, 1981). However, in comparison with the records in this case, the court below should consider the following evidence and found the witness's testimony at the time of original trial, which was evidence of the judgment subject to retrial, but the court below did not err in finding facts as to the above one of the grounds for final appeal since it did not constitute a violation of the rules of evidence selection, and therefore, it does not constitute a violation of the rules of evidence selection.
Therefore, the appeal is dismissed, and the costs of the appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.
Justices Kim Jung-soo (Presiding Justice) and Lee Jong-young's Lee Jong-young