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(영문) 대법원 1982. 12. 14. 선고 80다2908 판결

[소유권이전등기말소등][공1983.2.15.(698)270]

Main Issues

The meaning of a false statement under Article 422(1)7 of the Civil Procedure Act when it is admitted as evidence for a judgment.

Summary of Judgment

When a false statement under Article 422(1)7 of the Civil Procedure Act is used as evidence of a judgment, it shall be deemed that there is a possibility that the judgment will vary if the false statement becomes a evidence of fact-finding which serves as the basis of the judgment. As long as such possibility exists, it shall include all cases where the false statement directly or indirectly affects the fact-finding which serves as the basis of the judgment. Thus, it constitutes a ground for retrial as long as the false statement of the second instance court prior to the retrial was provided as it was a comparison evidence against other evidence to dismiss the plaintiff's claim along with other evidence, and it affected the fact-finding of the judgment subject to retrial.

[Reference Provisions]

Article 422(1)7 of the Civil Procedure Act

Reference Cases

Supreme Court Decision 69Da895 Decided August 26, 1969, Supreme Court Decision 81Meu327 Decided November 24, 1981

Plaintiff-Appellant-Appellee

Attorney Choi Jin-jin et al., Counsel for the defendant-appellant

Defendant-Appellee-Appellant

Egymology et al. and five defendants' attorney-at-law

Judgment of the lower court

Seoul High Court Decision 79Na12 delivered on November 5, 1980

Text

All appeals are dismissed.

The costs of appeal by the Plaintiff are assessed against the Plaintiff and the Defendants’ respective costs of appeal.

Reasons

1. First, we examine the Plaintiff’s attorney’s grounds of appeal.

In light of the records, the court below's decision that the registration of this case was made in the name of the defendant Lee Jong-chul and the non-party Lee Jong-chul is justified, and there is no violation of the rules of evidence, such as theory of lawsuit, and there is no violation of the rules of evidence against the rules of evidence. In addition, although there is an error of law that the above registration is invalid as a juristic act contrary to social order under Article 103 of the Civil Act, even if it is based on all evidence of this case as shown in the records, there is no evidence to acknowledge it, and therefore, it is obvious that the above assertion will be rejected, and therefore the illegality does not affect the conclusion

2. Next, we examine the Defendants’ attorney’s grounds of appeal.

With respect to No. 1:

When a false statement under Article 422(1)7 of the Civil Procedure Act is used as evidence for a judgment, it shall be deemed that there is a possibility that the judgment will change if the false statement becomes evidence for fact-finding which serves as the ground for the order of judgment (see Supreme Court Decision 4292Da879 delivered on August 18, 1960), and it shall include all cases where the false statement becomes a direct evidence for fact-finding which serves as the basis for the judgment (see Supreme Court Decision 69Da895 delivered on August 26, 1969; Supreme Court Decision 81Da327 delivered on November 24, 1981, etc.). Considering the judgment below based on the records, the court below's decision cannot be accepted as a ground for retrial because it did not affect the plaintiff's claim for new trial as evidence for fact-finding as well as other evidence of the second instance witness before the conviction of this case becomes final and conclusive, which constitutes a ground for new trial. Accordingly, the court below's decision is justified.

With respect to the second ground:

In this case, the court below's 45,000 won obligation of the purchase-price 45,00 won was acquired by transfer of the claim of 50,000 won against the non-party's non-party's non-party's full-time (seller) from the non-party's non-party, and reviewed the records and reviewed the process of establishing evidence, and therefore, the above fact-finding by the court below is justified, and there is no error in finding evidence contrary to the rules of experience or private law, such as the theory of lawsuit. It is not acceptable since the court below's reasoning is without merit because it is a mistake of the evidence and fact-finding belonging to the whole authority of the court below.

3. All appeals are dismissed, and the costs of appeal are assessed against each losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices O Sung-sung(Presiding Justice)