[파면처분무효확인등][공1996.3.15.(6),733]
Scope and effects of binding force on lower courts of the case remanded;
The court to which the case was remanded from the Re-appeal Court shall be bound by the factual and legal judgment of the Re-appeal Court on the ground of reversal. However, in the course of the trial after remanding the case, when there is a change in the factual relations, which form the basis of continuous judgment, due to the submission of new arguments and evidence during the process of the trial after remand, the binding force of the lower court’s judgment on the lower court is not limited to the passive aspect that the judgment of the lower court is not justified as the reason for reversal, and even if only the lower court is against the erroneous opinion that brought the same conclusion as the judgment prior to remand by another possible opinion, it cannot be said that the lower court committed an unlawful act which is not bound by the judgment of remand.
Article 406(2) of the Civil Procedure Act
Supreme Court Decision 88Da5560 Decided May 8, 1990 (Gong1990, 1237), Supreme Court Decision 92Da4192 Decided September 14, 1992 (Gong1992, 2868), Supreme Court Decision 94Da20501 Decided September 9, 1994 (Gong1994Ha, 2622), Supreme Court Decision 95Da33047 Decided October 13, 1995 (Gong195Ha, 377)
Plaintiff (Attorney Lee Tae-tae et al., Counsel for the plaintiff-appellant)
Korean Teachers' Federation (Attorney Hah Ho-kon et al., Counsel for the plaintiff-appellant)
Supreme Court Decision 93Da13544 Delivered on December 28, 1993
Seoul High Court Decision 94Na4280 delivered on January 17, 1995
The appeal is dismissed. The costs of appeal are assessed against the defendant.
The grounds of appeal and supplemental appellate brief shall be examined together with supplement in case of supplemental appellate briefs not timely filed.
The court that received the case from the Re-appeal Court shall be bound by the factual and legal judgment on the grounds of reversal of the Re-appeal Court. However, if the factual relations, which form the basis of continuous judgment, have been submitted through the deliberation process after remand, have changed, the binding force shall not extend (see Supreme Court Decisions 79Da1264 delivered on October 27, 1980, 80Da1072 delivered on December 14, 1982, and 86Nu90 delivered on November 10, 1987, and the binding force of the lower court's judgment on the judgment of remand, which was just for the reversal, takes place only passive grounds for reversal, and the lower court did not err by misapprehending the legal principles on a new disciplinary measure that was remanded after remanding the case, and thus, it cannot be deemed that the judgment of the court below did not have any legitimate ground for appeal 98Da5850 delivered on the ground of appeal which was remanded only with the opinion that was remanded on the grounds of reversal.
Therefore, the appeal is dismissed, and the costs of appeal are assessed against the defendant who is the appellant. It is so decided as per Disposition by the assent of all participating Justices.
Justices Park Jong-chul (Presiding Justice)