[2] The meaning of "when a judgment was omitted on a material fact that may affect the judgment" under Article 451 (1) 9 of the Civil Procedure Act

[3] In a case where the previous Supreme Court’s opinion on the application of the law is modified by a panel composed of less than two thirds of all Justices, whether it constitutes a ground for retrial under Article 451(1)1 of the Civil Procedure Act (affirmative)

1. As to the grounds for retrial omitting judgment

A. As to the omission of judgment on causation

The court of final appeal shall examine and determine only the grounds of appeal on the statement in the statement in the grounds of final appeal filed within the period for submitting the grounds of final appeal, as specified in Articles 429 and 431 of the Civil Procedure Act (see Supreme Court Decision 95Da229, Feb. 9, 1996). The grounds of appeal on the statement in the grounds of final appeal not timely filed include any supplementary appellate brief that contains any supplement to the grounds of final appeal already filed within the period or any new assertion that is not about matters to be examined ex officio (see Supreme Court Decision 97Da5126, Mar. 27, 1998).

The gist of the grounds for retrial in this part asserted by the Defendant (hereinafter “Defendant”) is as follows: (a) even if the Defendant, as the grounds for appeal against the judgment of the lower court on the judgment subject to a retrial, caused damages to the Defendant in connection with the sale and purchase of the US stocks, the Defendant alleged that there was no causation with the Defendant’s act of attaching the official seal of the representative director under the above sales contract, since it is not damages due to the conclusion of the above sales contract, but due to the decline in the price of the US stocks after the conclusion of the above sales contract; and (b) if the above sales contract is an unfair solicitation prohibited under the Securities and Exchange Act, the above sales contract should be deemed null and void as a violation of the mandatory law; and (c) the damages suffered by the bankrupt were special damages arising from the above sales contract, and the judgment on the judgment subject to a retrial was not made, even though the Defendant was unaware of, and thus, the judgment subject to a retrial did not have any effect on the above assertion.

In light of the aforementioned legal principles and records, the above argument (1) is not a ground of appeal stated in the appellate brief, but a statement was first made in the supplemental appellate brief on April 1, 2003 after the expiration of the period for submitting the appellate brief, and it cannot be a legitimate ground of appeal since it does not supplement the original ground of appeal or ex officio examination. (2) The above argument (3) is not a ground of appeal as well as the defendant's supplementary appellate brief on January 10, 2003 and April 1, 2003, and there are no grounds of appeal that may harm the defendant's prior assertion to such purport. Thus, even if there is no determination on each of the above arguments in the judgment for retrial, it cannot be deemed an omission of judgment under Article 451 (1) 9 of the Civil Procedure Act.

B. As to the omission of judgment on the scope of directors' duty to monitor

Article 451 (1) 9 of the Civil Procedure Act provides that "when a judgment is omitted with respect to important matters that may affect the judgment" refers to an attack and defense method submitted by a party in a lawsuit and that has an influence on the judgment, the decision is not clearly stated in the reasoning of the judgment, and as long as there exists a judgment, it shall not be deemed an omission in the judgment under the above Act, even if the reasons leading to the judgment are not clearly explained or the grounds rejecting the parties' claims are not individually explained (see, e.g., Supreme Court Decisions 200Da47200, Nov. 24, 200; 99Da62838, Jan. 25, 2002).

The gist of the grounds for retrial on this part of the defendant is the grounds for appeal against the judgment of the court below, and the duty of surveillance of directors is recognized only when there are grounds to suspect that the performance of duties by other directors is illegal, and it is reasonable to confirm the illegality of a sales contract of shares in the absence of a representative director, who is a director in charge of general affairs who affixed the official seal of the representative director, to the defendant, who is a director in charge of general affairs of the bankrupt representative director, would not exceed the scope of the director's duty of surveillance, and it would not go beyond the scope of the director's duty of surveillance, but at the same time require the defendant to bear an unconditional duty of surveillance on all foreign transactions that ordinarily occur like the above share sales contract. However, the judgment subject to retrial

Upon examining the grounds for the judgment subject to a retrial, the court below held that the defendant is liable for damages sustained by the bankrupt, on the ground that the non-party, who takes charge of the duties of the general team and manages the official seal of the representative director, was negligent in failing to perform the duty of care or surveillance by affixing the official seal on the contract merely on the ground that the non-party, who takes charge of the duties of the general team and takes charge of managing the official seal of the representative director, requested the official seal of the non-party, was not able to know that it is an act in violation of the law, but it was difficult to find it difficult to view that it was an act in violation of the law.

According to the above legal principles, the judgment in the judgment subject to a retrial includes the purport of rejecting the Defendant’s assertion as to the scope of duty to monitor by the director, who is presumed to have omitted the judgment, and even if the judgment subject to a retrial did not expressly state the grounds leading to the above judgment and the grounds rejecting the Defendant’s assertion, it cannot be said that there was an omission of judgment, which is the grounds for retrial under Article 451(1)9 of the

2. As to the grounds for a retrial for an unlawful judgment court formation

A. As to the assertion of change in precedents on causation

The defendant asserts that the damages suffered by the bankrupt due to the sale and purchase of the unsected shares are special damages, and even if the defendant was unable to know, the judgment subject to a retrial that recognized the defendant's liability for damages is modified the previous Supreme Court precedents concerning the causation that only compensates for the damages with proximate causal relation. As such, if the Supreme Court modifies the opinion on the interpretation and application of the law, it shall be judged by a panel of not less than 2/3 of all Justices, but it is judged by a panel of not less than three Justices, which constitutes grounds for retrial under Article 451 (1) 1 of the Civil Procedure Act.

In case where the previous Supreme Court’s opinion on the interpretation and application of the law is modified, it shall be tried at a collegiate body composed of not less than 2/3 of all the Justices, and where a judgment is rendered in a panel composed of less than two-thirds of all the Justices, this constitutes a case where the court of judgment is not constituted under the law and there is a ground for retrial (see, e.g., Supreme Court Decisions 86-2, May 12, 1987; 99Da524, May 12, 2000).

However, the grounds of appeal as to the judgment of the court below in the judgment subject to a retrial are special damages that the bankrupt sustained due to the sale and purchase of the shares in the U.S. and thus, that the defendant, who was not known, was not entitled to the liability for damages. As such, it is evident that there was no legal judgment as to such assertion in the judgment subject to a retrial, and it is evident that there was no legal judgment as a result, based on the grounds for the judgment subject to a retrial. Therefore, there is no room to view that the Supreme Court precedents as

B. As to the assertion of change in precedents regarding the duty of directors to monitor

The defendant asserts that there is a ground for retrial under Article 451(1)1 of the Civil Procedure Act in the judgment for retrial rendered by a panel composed of three Justices on the ground that the previous Supreme Court precedents, such as Supreme Court Decisions 84Meu1954 Decided June 25, 1985, which held that a director’s duty to monitor is recognized only when there are grounds for suspecting that another director’s duty to monitor was illegal in relation to the director’s duty to monitor.

In the above Supreme Court Decisions 84Meu1954 Decided the defendant, the director of the corporation has a duty to monitor the overall performance of duties by the director in charge of other affairs, so the director in charge of other affairs of the corporation may not be exempted from liability for damages suffered by the company if the director in charge of other affairs neglected his duties in violation of the duty of supervision despite the existence of grounds for suspecting the illegality.

However, among the contents of the judgment subject to a retrial, the part stating to the effect that if the defendant took a little attention, it would be difficult to find another director’s performance of duties difficult to find an illegal situation means a case where there exist grounds for suspecting that another director’s performance of duties was illegal, and can only be deemed as different expressions. Accordingly, the judgment subject to a retrial is only within the scope of the opinion expressed by the previous Supreme Court precedents as to the director’s duty to monitor, and cannot be deemed as changing its opinion. Therefore, even in relation to the grounds for a retrial, there is no ground for a retrial under Article 451(1)1 of the Civil Procedure Act.

C. As to the assertion of changes in precedents regarding the principle of pleading

In the first instance court and the court below's oral argument that "the defendant did not report the contents of the contract for the purchase and sale of the outstanding shares to the representative director and obtain his consent, but the non-party, who is another director, requested the representative director to affix his/her consent to the above contract, and the defendant confirmed only whether he/she actually gave his/her consent, and affixed his/her seal to the contract," but the plaintiff (the defendant, hereinafter referred to as "the plaintiff") did not dispute the plaintiff's assertion, unlike the above facts led by the plaintiff, that "the defendant explained the contents of the contract to the representative director, approved his/her official seal, affixed his/her official seal to the contract after explaining the contents of the contract to the representative director, and affixed his/her official seal to the contract," unlike the above facts led by the plaintiff, the defendant changed the existing Supreme Court precedents as to the binding force of the confession related to the principle of pleading, and therefore, the judgment for retrial that was rendered by the panel composed of three

However, according to the reasoning of the judgment subject to a retrial, the judgment subject to a retrial only recognizes the facts as stated in the above judgment by taking account of the adopted evidence, and it is apparent that there is no legal judgment as to the binding force of the pleading principle or confession, and thus, it cannot be deemed that there was a change in the previous Supreme Court precedents. The defendant's substance of the above assertion is merely an error of misconception of facts against the principle of pleading or the binding force of confession in the judgment subject to a retrial, and therefore,

3. Conclusion

Therefore, the request for retrial 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 Kim Nung-hwan (Presiding Justice)