[도로수익자부담금부과처분취소][공1981.5.1.(655),13808]
The meaning of "actual judgment made by the court of final appeal" under Article 406 (2) of the Civil Procedure Act as the reason for reversal.
The court of final appeal under the proviso of Article 406 (2) of the Civil Procedure Act is bound by a de facto judgment based on the grounds for reversal. The court of final appeal refers to a de facto judgment based on the matters to be examined ex officio (Procedural matters) by the court of final appeal. Thus, it is not erroneous in the judgment of remand, even if the court to which the case was remanded recognized the facts not ex officio
Article 406(2) of the Civil Procedure Act
Supreme Court Decision 63Da1193 Decided June 30, 1964
[Judgment of the court below]
Attorney Park Jae-hoon, Counsel for defendant-appellant
Seoul High Court Decision 78Gu394 delivered on December 24, 1980
The appeal is dismissed. The costs of appeal are assessed against the plaintiff.
We examine the Plaintiff’s ground of appeal No. 1.
According to the reasoning of the judgment below, the court below determined that the Seoul Special Metropolitan City's total construction amount of KRW 290,798,452 from April 7, 1975 to July 30 of the same year invested the total construction amount of KRW 290,798,452, and that the construction was performed between 5-6-A, and 6-A-A-A-A-A-A-A-A-A-A-A-A-A-A-A-A-A-A-A-A-A-A. Thus, the construction of this case is a road expansion construction performed by the head of Seoul Special Metropolitan City, the road management agency of this case, and thus, a road beneficiary's share can be imposed pursuant to Article 66 of the Road Act. The above judgment of the court below is just, and it cannot be said that there was an error
We examine the second ground for appeal.
The reason for reversal of Article 406 (2) of the Civil Procedure Act is that the court of final appeal is bound by a de facto judgment, which is the reason for reversal of the court of final appeal, means that the court of final appeal has a de facto decision on the matters to be ex officio (Procedural matters).
Therefore, even if the lower court, which received the remand, selected evidence through new pleadings, and recognized facts other than the matters to be examined ex officio, it cannot be said that the judgment was unlawful. However, according to the reasoning of the judgment below, according to the purport of the remanded judgment, the lower court rejected the appraisal result by the Korea Appraisal Board, and based on new evidence, the lower court determined that the construction area was 10 square meters as provided in Article 4 of the Building Act, Article 33 of the Enforcement Decree of the Building Act, Article 145 of the Enforcement Decree of the Building Act, Article 4 of the Seoul Metropolitan Government Fine Zone, and Article 4 of the Building Bylaws, and rejected the judgment based on the appraisal result by the new appraiser non-party 1, the lower court’s new appraiser non-party 1, who was appraised, was clearly determined on the basis of new pleadings, and thus, it cannot be said that the construction permit was in violation of the Building Act No. 64 of the Building Act, even if the construction permit was extended beyond the site of this case.
We cannot accept the issue as well as its independent opinion.
Therefore, this appeal is dismissed as it is without merit. The costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Yoon So-young (Presiding Justice)