건물명도
The request for retrial is dismissed.
The litigation costs for retrial shall be borne by the defendant.
We examine the causes for retrial.
1. Defendant (Plaintiff)’s assertion ① The first instance judgment of the judgment subject to a retrial and the lease agreement (Evidence A2) adopted by the lower court was forged (see Evidence A 3), and the delivery certificate (Evidence A 3-1) were false evidence. Thus, there exist grounds for retrial under Article 451(1)6 of the Civil Procedure Act in the judgment subject to a retrial.
② The lower court erred by misapprehending the legal doctrine on return of unjust enrichment or compensation for damages in contrast to the Supreme Court’s precedents. This constitutes grounds for retrial under Article 451(1)9 of the Civil Procedure Act to dismiss a final appeal due to the non-trial conduct, even though it falls under Article 4(1)3 of the Act on Special Cases Concerning the Procedure for Appeal.
③ Although the Defendant (hereinafter “Defendant”) presented three copies (No. 4) of the Statement of Transactions as Evidence for Rent Payment at the lower court of the judgment subject to a retrial at the lower court, the lower court’s judgment that determined that “No evidence exists to acknowledge that he paid rent,” adopting only one of them as evidence and omitting the remaining two Chapters, constitutes grounds for retrial under Article 451(1)9 of the Civil Procedure Act.
2. Determination
A. (1) The evidence No. 3 alone is insufficient to acknowledge that the evidence No. 2 was forged, and there is no other evidence to acknowledge that the evidence No. 3 is false.
Furthermore, in order to institute a suit for retrial on the ground that “the document or any other article used as evidence for the judgment has been forged or altered,” under Article 451(1)6 of the Civil Procedure Act, the circumstance that “when a judgment of conviction or a judgment of a fine for negligence has become final and conclusive or when a final and conclusive judgment of conviction or a fine for negligence cannot be rendered for reasons other than lack of evidence” should be recognized pursuant to Article 451(2) of the same Act.