손해배상(기)
1. The lawsuit of this case shall be dismissed.
2. The costs of retrial shall be borne by the plaintiff.
purport, purport, ..
1. The Plaintiff filed a lawsuit against the Defendants for a claim for damages (the first instance court) due to destruction of evidence, etc. caused by a false statement with the Suwon District Court’s Ansan Branch Decision 201Ga45620, but was sentenced to the dismissal of the claim on March 13, 2014, and the Suwon District Court appealed as 2014Na14235, but was sentenced to the dismissal of the appeal on February 9, 2017, although the Plaintiff appealed as Suwon District Court Decision 2014Na14235, Feb. 15, 2017. The fact that the said judgment (the subject judgment) became final and conclusive on March 3, 2017 is obvious or obvious in the records, because the Plaintiff was not served with the original copy of the judgment of the said appellate court on February 15, 2017.
2. Determination on the legitimacy of the litigation for retrial of this case
A. Although the Plaintiff filed an application for the examination of witness on August 2, 2016, during the course of the instant appellate trial where the Plaintiff had filed an application for the examination of witness on August 2, 2016, the said appellate court did not render a judgment as to the Plaintiff’s request for witness, and sentenced the said judgment to be subject to a retrial, and the said judgment omitted a judgment as to the above request for examination of witness. As such, there were grounds for retrial falling under Article 451(1)9 of the Civil Procedure Act
B. According to the proviso of Article 451(1) of the Civil Procedure Act, when a party asserts a ground for a retrial by an appeal or fails to know it, a retrial cannot be instituted. Here, “when the party does not know it,” the term “when the party did not appeal despite having known it,” includes not only the case where an appeal was filed despite having been aware that there was a ground for a retrial, but also the case where the judgment became final and conclusive due to the failure to file an appeal, and barring special circumstances, a party to a lawsuit or his legal representative becomes aware that there was a ground for a retrial omitting the judgment when he was served the original copy of the judgment.