[1] In a case where a lawsuit for interim confirmation was filed during the retrial procedure, but a ground for retrial is not recognized, and a request for retrial is dismissed, measures to be taken by the court regarding the lawsuit for interim confirmation (=retirement by the text of the judgment

[2] In a case where a party's claim is not presented in the judgment, whether an appeal against the part is lawful (negative)

[3] The meaning of "when the judgment was omitted with respect to a material fact that may affect the judgment" under Article 451 (1) 9 of the Civil Procedure Act

[1] The filing of a lawsuit for interim confirmation in a retrial procedure is seeking confirmation of the existence of a legal relationship with respect to the main claim of a lawsuit subject to retrial on the premise that a request for retrial will be accepted. As such, in a case where a ground for retrial is not recognized and a request for retrial is dismissed, there is no need to further examine the existence of a preliminary legal relationship subject to an adjudication of a lawsuit for interim confirmation. However, inasmuch as a lawsuit for interim confirmation is not a simple means of attack and defense, but an independent lawsuit is not a mere means of attack and defense, the determination of such lawsuit should be stated in the text of a final judgment, so if a request for retrial is dismissed due to lack of grounds for retrial

[2] The judgment requires that the conclusion be entered in the text of the judgment in order to clarify the court's decision, and the judgment in relation thereto shall be deemed omitted, unless there exists any statement in the text of the judgment. The lawsuit in the part where the trial was omitted is still pending in that instance, and thus, it is unlawful to appeal in that part.

[3] "When a judgment is omitted with respect to important matters that may affect the judgment" under Article 451 (1) 9 of the Civil Procedure Act refers to the case where a party submitted in a lawsuit and has failed to specify the judgment in the reasoning of the judgment as to the means of attack and defense that may affect the judgment. As long as a judgment has been rendered, even if the reasons leading to the judgment are not clearly explained or the grounds rejecting the party's claims are not individually explained, it is not an omission of judgment

[1] Articles 208, 264, and 451 of the Civil Procedure Act / [2] Articles 208 and 212 of the Civil Procedure Act / [3] Article 451 (1) 9 of the Civil Procedure Act

[2] Supreme Court Decision 2004Da24083 decided Aug. 30, 2004 (Gong2004Ha, 1600) Supreme Court Decision 2005Du15700 decided Nov. 16, 2007 (Gong2007Ha, 1936) / [3] Supreme Court Decision 2000Da47200 decided Nov. 24, 200 (Gong2001Sang, 143) Supreme Court Decision 2005Da200 decided Dec. 8, 2006

○○ Cultural Institute (Attorney Ho-type, Counsel for the defendant-appellant)

Defendant

Seoul Central District Court Decision 2006Na163, 2007Na414 decided July 19, 2007

The final appeal as to the intermediate confirmation lawsuit is dismissed. The remaining final appeal is dismissed. The costs of final appeal are assessed against the Plaintiff (Appellant).

We examine the grounds of appeal.

1. As to the omission of trial in a lawsuit for intermediate confirmation

The filing of a lawsuit for interim confirmation in a retrial procedure is seeking confirmation of the existence of legal relations in a preemptive relation to the claim for the main claim of a lawsuit subject to retrial on the premise that the request for retrial will be accepted. As such, in a case where the grounds for retrial are not recognized, if the request for retrial is dismissed, it is not necessary to further examine the existence of a preemptive legal relationship subject to an interim confirmation. However, since a lawsuit for interim confirmation is independent, not merely an attack and defense method, it should be stated in the text of a final judgment, but should be stated in the text of a final judgment. Therefore, if a ground for retrial is not recognized, if the request for retrial is dismissed due to lack of grounds for retrial, it shall be dismissed the lawsuit for interim confirmation and it shall be stated in the text of the judgment. In addition, the judgment must be written in the text of the judgment in order to clarify the judgment of the court. Therefore, if the judgment is omitted, the lawsuit for such part is still pending in the court, and thus, it is unlawful (see, e.g., Supreme Court Decision 2004Du17570.20.

According to the records, where the court below dismissed a request for retrial based on the determination that there is no ground for retrial asserted by the plaintiff, and thus dismissed such request, it can be seen that there is no need to judge whether the lawsuit for interim confirmation is legitimate or whether the lawsuit for interim confirmation was legitimate, and that the lawsuit for interim confirmation of this case filed by the plaintiff was not determined in the text and reasoning of the judgment.

In light of the above legal principles, the court below should have dismissed the lawsuit for interim confirmation on the ground that it should have been deemed unlawful, so long as no judgment was made on the text of the judgment and the grounds thereof, this constitutes an omission of judgment on the lawsuit for interim confirmation, and the part of the lawsuit is still pending in the court below. Thus, the plaintiff's appeal on the lawsuit for interim confirmation cannot be dismissed on the ground that the plaintiff's appeal on the lawsuit for interim confirmation is unlawful because it is not the subject of appeal.

2. As to the omission of judgment in a judgment subject to review

"When a judgment is omitted with respect to important matters that may affect the judgment" under Article 451 (1) 9 of the Civil Procedure Act refers to an attack and defense method submitted by a party in a lawsuit and that has an influence on the judgment, and where a judgment is not clearly stated in the reasoning of the judgment, as long as there exists a judgment, it cannot be deemed an omission of judgment under the above Act, even if the reasons leading to the judgment are not clearly explained or the grounds rejecting the parties' claims are not individually explained (see, e.g., Supreme Court Decisions 2000Da47200, Nov. 24, 2000; 2005Da20, Dec. 8, 2006).

As stated in its holding, the lower court rejected all of the Plaintiff’s allegation on the starting point of the extinctive prescription period, legal disability allegation, and demand for payment. The fact that the lower court determined that the judgment subject to a judgment was clearly recorded in the record, and that the determination on the allegation on the acceptance of obligation is included in the judgment on the highest demand for payment. The determination on the non-performance of obligation to report is included in the judgment on the starting point of extinctive prescription and legal disability argument, and even based on the Plaintiff’s argument itself, the set-off argument was submitted in the Defendant’s reply as to the Defendant

Examining the reasoning of the lower judgment in light of the aforementioned legal principles and records, we affirm the lower court’s fact-finding and judgment as justifiable.

The court below did not err by misapprehending the legal principles as to omission of judgment and grounds for retrial, as otherwise alleged in the ground of appeal.

3. As to other grounds for retrial

The plaintiff asserts that the judgment subject to a retrial constitutes a violation of Article 166(1), 177, or 168 of the Civil Act, or constitutes “when a court of adjudication is not constituted under the law,” which is a ground for retrial under Article 451(1)1 of the Civil Procedure Act. However, this assertion does not constitute a ground for retrial under each subparagraph of Article 451(1) of the Civil Procedure Act, or is a new ground for appeal for the final appeal without the plaintiff's assertion at the original court, and it cannot be a legitimate ground for appeal against the judgment of the court below. Thus, all of the above arguments cannot be accepted.

4. Conclusion

Therefore, the appeal regarding the intermediate confirmation lawsuit is dismissed, and the remaining appeal is dismissed, and 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 Cha Han-sung (Presiding Justice)