[전역처분무효학인][공1994.9.15.(976),2304]
Whether Article 422(1)2 of the Civil Procedure Act falls under Article 422(1)2 of the Civil Procedure Act, where a judge who participated in the second retrial case has participated in the judgment of
Even though a judge taking part in the first request for a retrial is involved in the judgment of final appeal of the second request for a retrial which is a judgment subject to a retrial, it does not constitute "when a judge is unable to participate in such judgment by law" under Article 422 (1) 2 of the
Articles 422(1)2 and 37 subparag. 5 of the Civil Procedure Act
Supreme Court Decision 67Da212 delivered on March 28, 1967 (No. 15 ① civil 267) 71Da27 delivered on May 11, 197 (No. 19 ② civil 12) 90Da23 delivered on December 11, 1990 (Gong191,716)
Plaintiff
Army Chief of Staff
Supreme Court Decision 87Nu243 Decided January 17, 1989
The request for retrial is dismissed.
The litigation costs for retrial shall be borne by the plaintiff.
The grounds for request for retrial shall be considered.
According to the records, the plaintiff (the plaintiff) is awarded a judgment against the Seoul High Court against which a lawsuit seeking nullification of the disposition of discharge from active service is filed, and the plaintiff (the plaintiff) has been filed in the same court with the same court for a second retrial and has failed to file a lawsuit for second retrial, and filed a final appeal with the Supreme Court to the Supreme Court, which has received a judgment against the plaintiff, but has received a judgment against the Supreme Court. In this case, even if the judge involved in the second appeal case (the judgment subject to retrial in this case) in the second appeal case, even if he participated in the judgment of final appeal of the second appeal case, this does not constitute "when the judge is unable to participate in the judgment under the law" under Article 422 (1)
Therefore, the request for retrial shall be dismissed and the costs of retrial shall be borne by the losing party. It is so decided as per Disposition by the assent of all participating Justices.
Justices Lee Don-hee (Presiding Justice)