[불합격처분취소][미간행]
Whether the ground of appeal that dismissed a case falling under Article 4 (1) 5 of the Act on Special Cases Concerning the Procedure of Appeal constitutes a legitimate ground for retrial (negative), and whether the ground of appeal is dismissed on the ground of appeal that the ground of appeal constitutes a ground for rejection of hearing under the Act on Special Cases Concerning the Procedure of Appeal, if the ground of appeal is deemed to fall under a ground for rejection of hearing
Article 4(1)5 of the Act on Special Cases Concerning the Procedure for Final Appeal; Article 451(1)9 of the Civil Procedure Act
Supreme Court Decision 95Nu176 Decided February 13, 1996 (Gong1996Sang, 1002) Supreme Court Decision 2008Da502 Decided February 12, 2009
Plaintiff (Reexamination Plaintiff)
Human Resources Development Service
Supreme Court Decision 2016Du4649 Decided November 10, 2016
The request for retrial shall be dismissed. The costs of retrial shall be borne by the plaintiff (Plaintiff).
The grounds for retrial are determined.
The Plaintiff (hereinafter “Plaintiff”) asserts that there was a ground for retrial under Article 451(1)9 (i.e., Article 451(1) of the Civil Procedure Act on Special Cases Concerning the Procedure for Appeal to the Supreme Court, even though there exist grounds for Article 4(1)5 of the Act on Special Cases Concerning the Procedure for Appeal to the original judgment, the original judgment did not render any judgment on the grounds of appeal by dismissing the Plaintiff’s appeal to the lower court as a continuous deliberation. Therefore, the original judgment did not
However, the grounds for dismissing a case falling under Article 4(1)5 of the Act on Special Cases Concerning the Procedure for Appeal does not constitute legitimate grounds for retrial. In addition, inasmuch as the grounds for appeal alleged in the grounds for appeal by an original judgment falls under a ground for rejection of a trial under the Act on Special Cases Concerning the Procedure for Appeal, and the appeal is dismissed without further deliberation, it cannot be deemed that the original judgment omitted the judgment on the grounds for appeal (see, e.g., Supreme Court Decisions 95Nu176, Feb. 13, 1996; 2008Da502, Feb. 12, 2009).
Other grounds asserted by the plaintiff do not constitute grounds for retrial under each subparagraph of Article 451(1) of the Civil Procedure Act.
Therefore, the retrial costs are 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.
Justices Park Poe-young (Presiding Justice)