[소유권이전등기말소등][집28(2)민,245;공1980.10.15.(642),13118]
The meaning of cases where a final judgment which filed a new trial under Article 422(1)10 of the Civil Procedure Act conflicts with a final and conclusive judgment rendered prior to the trial
When a final and conclusive judgment prior to a ruling to institute a new trial under Article 422(1)10 of the Civil Procedure Act conflicts with a final and conclusive judgment rendered by the same party, means two final and conclusive judgments where res judicata conflict with respect to the same case between the same parties.
Article 422(1)10 of the Civil Procedure Act
[Defendant-Appellant] Plaintiff 1 and one other, Counsel for defendant-appellant-appellant-appellee
Defendant (Re-Appellant) 1 and 3 others, Counsel for the defendant-appellant)
Supreme Court Decision 79Da295 delivered on January 15, 1980
The retrial lawsuit is dismissed.
Litigation costs incurred in a retrial shall be borne by the defendant.
The grounds for retrial are determined.
No. 1, No. 2 of the Grounds for Appeal in respect of the judgment of the court below subject to review includes arguments that there is an error of finding facts without any evidence, in addition to the violation of the rules of evidence. The fact that the court below acknowledged without evidence is about whether the shape of the land was farmland at the time of the enforcement of the Farmland Reform Act, i.e., whether the index was suspended and the road was opened, and whether it was cleared, and whether it was cleared," and the judgment subject to review was an important factor in this case, but did not make a decision on the above grounds for appeal that there was an error of finding facts without any evidence. Thus, the judgment subject to review only judged that "it is impossible to make any error of violating the rules of evidence," and there is a ground for a retrial as provided in Article 422 (1) 9 of the Civil Procedure Act.
However, according to the reasoning of the judgment subject to review, it is clear that the judgment of the court below, such as the theory of lawsuit, has judged that the above fact-finding measures of the court below are not acceptable, and there is no error in the rules of evidence against the rules of evidence, such as theory of lawsuit, etc., in the evidence preparation which was completed in the process. Therefore, the argument that there is a ground for a ground for a retrial of a omission of judgment in the opposite position is groundless
No. 2 and No. 3 of the judgment below's grounds for appeal No. 3 and No. 2 of the Reasons for Appeal No. 1 of the Attorney No. 2 were discussed. However, despite the previous Supreme Court's opinion of the Supreme Court (1. 23, 1971. 69Da40, 41, Nov. 23, 1971), the judgment subject to review judged that "the case of a party member cited by the theory is not appropriate for this case" as to this point. The judgment subject to review is not only a ground for a retrial without making a substantial decision on this point, but also there is a ground for retrial because it constitutes "when the judgment prior to the final judgment" under Article 422 (1) 10 of the Civil Procedure Act.
However, according to the reasoning of the judgment subject to a retrial as to the existence of a omission of judgment, if the judgment is the same as the above decision of the court below, the land in this case should be seen as farmland before the enforcement of the Farmland Reform Act, even if the construction work of the housing site was not completed, even if the construction work of the housing site was objectively made into a site and was temporarily changed at the time of the enforcement of the same Act, it cannot be viewed as farmland, and therefore, if farmland is distributed, it cannot be viewed as a revocation of judgment. Therefore, the judgment below is just and there is no misapprehension of legal principles as the theory, and the precedents of party members cited in the theory are not appropriate in this case, and it is clear that it is not acceptable to discuss that there is a cause for a retrial of the omission of judgment. Accordingly, it is obvious that there is a ground for appeal such as the theory of lawsuit, and it is contrary to the final judgment prior to the new trial as provided in Article 422 (1) 10 of the Civil Procedure Act, and therefore, there is no possibility that the final judgment conflicts with the res judicata effect effect between two parties.
No. 3, the attorney Lee Woo-won, a plaintiff's attorney Lee Do-won, on June 25, 1980, asserts that there exists a ground for retrial when the court did not constitute a judgment court under the law as stated in Article 422 (1) 1 of the Civil Procedure Act, on the grounds of the same reasons as the theory of lawsuit, in the supplement of the grounds
However, one of the grounds for retrial is to form a separate request for retrial. As a result, several grounds for retrial are nothing more than consolidation of the request for retrial, and the peremptory period for the review should be separately calculated on the basis of each of the grounds separately. However, it is apparent that the ground for retrial was 1.24 in the record that the judgment subject to retrial was delivered to the Plaintiff on the ground that the ground for retrial was 1.24 in that year, and that it was 30 days after the date on which the grounds for retrial became known, and that the ground for retrial was legitimate.
Therefore, this case is without merit, and it is dismissed, and the costs of the new trial are jointly borne by the plaintiffs who have lost them. It is so decided as per Disposition by the assent of all participating Justices.
Justices Cho Gi-port (Presiding Justice)
Justices Jin- Port (Presiding Justice) is disqualified from signing due to retirement. Kim Hong (Presiding Justice)