[소유권이전등기청구사건][하집1985(3),79]
Requirements to be satisfied when the prosecutor’s non-prosecution disposition on the grounds of the expiration of the statute of limitations is not able to make a final and conclusive judgment of conviction due to reasons other than defects in evidence prescribed in the latter part of Article 42
Even if the statute of limitations has expired and the accused of the crime of forging documents or perjury has not been taken a non-prosecution disposition, if it is impossible to render a final and conclusive judgment of conviction due to reasons other than defects in evidence in the latter part of Article 422(2) of the Civil Procedure Act, the criminal act should be specifically proven to the extent that it is obvious that the final and conclusive judgment of conviction was made for the crime of forging documents or perjury if the statute
Article 422 of the Civil Procedure Act
Plaintiff
Defendant
Government Branch of Seoul District Court (79 Gahap40) in the first instance court
1. The lawsuit of this case shall be dismissed.
2. The costs of the retrial shall be borne by the defendant.
On November 22, 1977, the defendant shall implement the procedure for the registration of ownership transfer on the ground of sale on November 22, 197 with respect to the 244.6 square meters from the Government-dong (number omitted) of Jung-gu, Government-si.
Judgment that the lawsuit costs shall be borne by the defendant
Seoul High Court Decision 79Na1714 delivered on December 14, 1979 and the Seoul District Court Decision 79Na40 delivered on April 24, 1979 and revoked each of the above decisions.
The plaintiff's claim is dismissed.
The judgment that the total costs of the lawsuit shall be borne by the plaintiff
The plaintiff filed a lawsuit against the defendant on Nov. 22, 1977 against the government branch of the Seoul District Court on Apr. 14, 1979 that the plaintiff filed a judgment in favor of the plaintiff on Apr. 29, 1979, and appealed to Seoul High Court 79Na1714, but the defendant appealed to the appellate court on Dec. 14, 1979, but the defendant again appealed to the Supreme Court 80Da161, but the appellate court dismissed the defendant's appeal on Mar. 25, 1980, which became final and conclusive on Mar. 25, 1980 as the defendant's appeal was dismissed on Mar. 25, 1980.
In the above appellate judgment, which is the cause of the request for retrial of this case, the defendant rendered a ruling dismissing the defendant's appeal by citing the statements in Eul evidence 6 and the testimony of the non-party witness of the original trial as evidence. However, the part that the defendant, as a result of the investigation by filing a complaint against the plaintiff and the non-party witness of this case, stated that the above evidence was a general and intermediate payment among the evidence No. 6 was forged, and the statement at the court below of the above non-party witness of this case was also a perjury. However, since each of the above crimes was not prosecuted on December 19, 1984 on the ground that there was no right of prosecution due to the expiration of the statute of limitations, it was impossible to receive a final judgment of conviction due to reasons other than lack of evidence, and thus, the forged evidence and the non-party's false statement constitute grounds for retrial under Article 422 (1) 6 and 7 of the Civil Procedure Act in the judgment subject to retrial for which evidence was admitted. In light of the above, it is obvious that the above evidence is adopted.
A lawsuit for retrial on the grounds that the document forged or false statement of a witness was evidence of the judgment may be instituted only when the judgment of conviction became final and conclusive or it is impossible to render a final and conclusive judgment of conviction for reasons other than defects in evidence (Article 422(2) of the Civil Procedure Act). In this case, the defendant is a person who has not made a final and conclusive judgment of conviction for the above act of forging or perjury. In addition, in the above criminal complaint case, the defendant is not prosecuted for reasons other than defects in evidence because the statute of limitations has expired and there is no right to institute a final and conclusive judgment of conviction for reasons other than defects in evidence. However, if the crime of forging documents or perjury complaint case becomes final and conclusive, it is not sufficient to acknowledge that the defendant's testimony was not recorded in the above document forgery or perjury and the record of the court records, which is the non-party's testimony, was written differently from the above evidence to the extent that the defendant's written judgment of conviction was not completed (Article 722(2) of the Civil Procedure Act).
Therefore, the lawsuit of this case is dismissed, since it is not necessary to determine the remainder of the grounds for retrial, or it does not meet the lawful requirements for retrial. It is so decided as per Disposition with the burden of the losing defendant.
Judges Kim Young-jin (Presiding Justice)