(영문) 서울고등법원 1994. 2. 28. 선고 93재나128 판결[손해배상(자)][판례집불게재]
Articles of incorporation and three others
[Defendant-Appellant-Appellee-Appellant]
Seoul Civil District Court Decision 90Gahap29406 delivered on September 28, 1990
Seoul High Court Decision 90Na48503 delivered on June 13, 1991
1. The request for retrial is dismissed;
2. The costs of the lawsuit for retrial shall be borne by the defendant.
The decision subject to a retrial shall be revoked. The part of the judgment of the court below against the defendant (only the plaintiff, hereinafter referred to as the "defendant") shall be revoked, and all of the claims of the plaintiff (the plaintiff, hereinafter referred to as the "Plaintiff")
The defendant shall pay to the plaintiff's articles of incorporation, 42,037,739 won per annum, 2,000 won per annum from September 16, 1989 to the date of the declaration of the original judgment, and 25 percent per annum from the next day to the date of the full payment.
The part of the judgment of the court below against the plaintiffs shall be revoked, and the defendant shall pay to the plaintiff's articles of incorporation 8,983,187 won, gold 7,983,187 won, gold 1,00,000 won, and each of the above amounts shall be 5% per annum from September 16, 1989 to the date of the sentence of the court below, and 25% per annum from the next day to the date of full payment.
The plaintiffs filed a claim for damages against the defendant on September 28, 1990, on the ground that the vehicle owned by the defendant of the non-party rights leather driving exceeded the central line and caused the death of the non-party gardening, and the above gardening has caused the death, and the above court rendered a judgment in favor of the plaintiffs to recognize the circumstances leading up to the accident as alleged by the plaintiffs and pay damages to the defendant to the defendant on September 28, 1990. As to the above judgment, it is true that the above judgment became final and conclusive by the court below as a result of the plaintiff's articles of incorporation and the incidental appeal of Jeong-ok, which recognized the traffic accident as alleged by the plaintiffs on June 13, 1991, and the appellate court accepted part of the incidental appeal of the plaintiff's articles of incorporation and Jeong-ok, and ordered the defendant to additionally pay damages to the above plaintiffs, and ordered the defendant to dismiss the defendant's appeal in addition to the cited appeal of the judgment of the first instance court, and the judgment subject to a retrial became final and conclusive as the above judgment period.
The Defendant, at the time of the traffic accident, based on the Seoul District Court's Southern Branch of Seoul District Court on April 22, 1991, the judgment subject to the judgment was rendered for the violation of the Act on Special Cases Concerning the Settlement of Traffic Accidents (hereinafter referred to as "Act on Special Cases Concerning the Settlement of Traffic Accidents") against the non-party who driven the Defendant's vehicle at the time of the traffic accident. The judgment of the first criminal court recognized the traffic accident circumstance as the Defendant's vehicle caused the accident beyond the center line, and sentenced the Defendant's imprisonment without prison labor for two years against the above right leather. The above judgment of the first criminal court was appealed thereafter, and it became final and conclusive as the grounds for retrial of the judgment of the Seoul Criminal Court (hereinafter referred to as "the Seoul Criminal Court"), which is the appellate court's appellate court's final decision, and the Seoul Criminal Criminal Court's final and conclusive judgment as the ground for retrial of the above two-year motor vehicles by changing the traffic accident through order 92No3153, Apr. 15, 1993.
However, according to the records, at the fifth day for pleading before the retrial, there was no dispute between the plaintiffs and the defendant on the fact that the court of first instance declared that the court of first instance was convicted of the above satise of the above satise of the defendant's vehicle at the fifth day for pleading before the retrial, and at the sixth day for pleading, the plaintiffs submitted as documentary evidence part of the trial records of the above 90Kadan1085 case, and the copy of the judgment of first instance was bound by the records after the closing of argument before the retrial, but the above satise of the judgment of first instance was not presented as evidence through the litigation before the retrial and the court of first instance before the retrial. Thus, if the judgment of first instance was not presented as evidence before the retrial, and thus, if the judgment of first instance did not accept the above satise of the first instance as evidence, the court of first instance recognized the fact that the court of first instance changed at the date for pleading before the retrial, and even if the copy of the judgment of the above satise of the criminal judgment, it cannot be justified.
In addition, the defendant's judgment subject to a retrial was based on the written indictment of the above criminal case against the non-party's right of operation of the defendant's vehicle at the time of the traffic accident, and the facts charged in the indictment are that the defendant's vehicle was involved in an accident beyond the center line. The above facts charged in the indictment changed by a criminal judgment as alleged above, and the traffic accident occurred not by the defendant's vehicle first, but by the accident circumstance where the vehicle of the victim's vehicle was invaded by the center line. Thus, even if the facts charged in the indictment, which form the basis of the judgment, were acknowledged differently by the judgment, it constitutes grounds for a retrial by analogy of Article 422 (1) 8 of the Civil Procedure Act, which provides that even if the facts charged in the indictment, which form the basis of the judgment, are recognized differently by the judgment, it constitutes grounds for a retrial by analogy of Article 422 (1) 8 of the Civil Procedure Act, but it cannot be said that the above facts were finalized by a judgment different from the facts charged in the indictment.
Therefore, the defendant's request for retrial cannot be recognized as a ground for retrial, and it is without merit to determine the legitimacy of the decision subject to retrial, and it is dismissed. It is so decided as per Disposition.
Judges Park Young-young (Presiding Judge)