민사소송법 제451조 제1항 제1호 및 제9호의 재심사유의 여부[기각]
Whether a cause for retrial under Article 451(1)1 and 9 of the Civil Procedure Act exists
Since it is apparent that an original decision does not constitute a change in the previous opinion by making a decision different from the previous Supreme Court decision, the request for retrial cannot be deemed a ground for retrial under Article 451(1)1 of the Civil Procedure Act on the ground that the decision for retrial was not made by a two-thirds or more collegiate body of all Justices.
Article 451(1)4 and 9 of the Civil Procedure Act
The request for retrial is dismissed.
The litigation costs for retrial shall be borne by the plaintiff.
The gist of the grounds for the request for retrial of this case lies in the grounds for retrial under Article 451 (1) 1 (when the court of judgment is not constituted by law) and Article 451 (1) 9 (when the judgment was omitted on important matters that may affect the judgment) of the Civil Procedure Act, which are applicable mutatis mutandis by Article 8 (2) of the Administrative Litigation Act.
However, according to the records, even though ○○○, a representative director of ○○ Industrial Co., Ltd., was not exempted from the obligation to the above company until the original judgment was rendered, the defendant (the re-defendant) stated that the above company’s loans borrowed from ○○○○○○ in the financial statements of the business year 1997 were reduced and disposed of as a set-off against losses incurred during the business year 1997 only stated that the above company’s disposition of gift tax was unlawful in violation of the principle of underlying taxation under Article 16 of the Framework Act on National Taxes. The court below rejected the plaintiff (the plaintiff)’s above assertion. The plaintiff (the re-appellant) newly asserted that the disposition of this case was against the Supreme Court Decision 203Du4249 Decided November 28, 2003, and thus, the judgment below did not constitute a legitimate ground for retrial since it did not constitute a ground for final appeal of Article 40 of the previous Act. Thus, the judgment below’s ground for final appeal No. 300 of this case constitutes a ground for final appeal. 400.
In addition, as seen earlier, as long as the grounds for appeal against the judgment of the court below against the judgment of the court below are determined to fall under the grounds for non-compliance with the deliberation under Article 4 of the Act on Special Cases Concerning the Procedure for Appeal, and the appeal is dismissed for this reason, it cannot be deemed that the judgment was omitted regarding the important matters that may affect the judgment (see Supreme Court Decision 95Da113,120 delivered on August 11
Therefore, the 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.