2019Da1664 Registration of transfer of ownership

person

1. BU which is the litigant B of the network A's lawsuit acceptance system;

2. A lawsuit taken over by the network C;

[Judgment of the court below]

Korea

Government Legal Service Corporation (Law Firm LLC)

Attorney Seo Young-young, Kim Jong-ho, Park Jong-ho, Park Jong-hoon, Kim Tae-hoon

Seoul High Court Decision 2018ReNa527 Decided January 10, 2019

October 18, 2019

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. Reopening of procedure is exceptionally established in order to realize specific justice by lowering the legal stability in accordance with the final and conclusive judgment in cases where there is a serious defect in which the final and conclusive judgment cannot be recognized as effective (see Supreme Court Decision 91Da45691 delivered on July 24, 1992, etc.).

Article 451(1)8 of the Civil Procedure Act provides that “when a judgment or any other judgment or administrative disposition, which forms the basis of a judgment, has been altered by a different judgment or administrative disposition” as grounds for retrial. This refers to cases where a judgment or administrative disposition, which forms the basis of a judgment, is finalized and retroactively changed by another judgment or administrative disposition thereafter (see, e.g., Supreme Court Decision 87Meu2088, Dec. 8, 1987). Here, the term “based on a judgment” refers to cases where a judgment has legal binding force or where the substance of a judgment becomes materials for fact-finding in a final judgment and may affect the fact-finding in a final judgment (see, e.g., Supreme Court Decision 94Da20570, May 31, 1996).

The grounds for retrial constitute a separate cause of claim. As such, where multiple convictions were the basis of the judgment of retrial, and each convictions were revoked through a retrial and the judgment of innocences became final and conclusive after the judgment of innocences, the circumstance that each of the convictions was revoked and the judgment of innocences became final and conclusive shall, barring special circumstances, be deemed to constitute a separate independent ground for retrial corresponding to “when a criminal judgment, which forms the basis of the judgment of innocence, was altered according to another judgment” under Article 451(1)8 of the Civil Procedure Act. Unless there are special circumstances, each of the convictions, which forms the basis of the judgment subject to retrial, becomes a separate ground for

2. A. The reasoning of the lower judgment and the record reveal the following.

1) On December 6, 1989, the judgment subject to new trial of this case (Seoul High Court Decision 68No. 68No. 24) rendered a judgment subject to new trial (Seoul High Court 67Na1011) as to the first judgment subject to new trial (Seoul High Court 67Na101), as evidence, since V and BI, who was convicted of perjury, used testimony as to the distribution of farmland in the land in the East East East East East East East East East East East East East East East East East East East East East East East East East East East East East East East East East East East East group, which was a ground for new trial under Article 422(1)7 of the former Civil Procedure Act (amended by Act No. 4201 of Jan. 13, 1990; hereinafter the same). Since 30 farmers, such as TA, who filed a lawsuit for ownership transfer registration, were aware of the judgment subject to new trial under Article 422(1)7 of the former Civil Procedure Act, which was the first one public official, "Y Kkk's."

2) After that, part of the Defendants and their bereaved family members, etc. were found guilty on July 8, 2008, based on the truth-finding findings, etc. by the Committee on the Settlement of History for Reconciliation and Reconciliation. As to the 21 persons, U.S. et al., the judgment of innocence was finalized on December 7, 201 as the Seoul Central District Court 2009 Inventory3, 6 (Joint) and 9 (Joint). The Seoul Central District Court 2009Do7 as to T, the Seoul Central District Court 2009Do7 as to T, and the Seoul Central District Court 2010 No. 2010No26 as to BA, and the Seoul Central District Court 2010No26 as to V, respectively, became final and conclusive on February 4, 2012.

3) On the other hand, among the remaining Defendants convicted, the conviction was revoked by each of the public official BJ related to the Kdong-dong land CM, the public official BJ, and the judgment of innocence was finalized on November 1, 2014 as Seoul Central District Court 201 Inventory27, Seoul Central District Court 2014No324, Seoul Central District Court 2015, the Seoul High Court 2012 Reno72 on July 17, 2015, the BJ as Seoul Central District Court 2012 Reno75 on February 25, 2016, and the CJ as Seoul Central District Court 2012 reno25 on February 20, 2018.

B. Examining these facts in light of the legal principles as seen earlier, as well as U, etc. 21 and the respective convictions against AM, S, BJ, and AT as well as the respective convictions against B, B, and V, each of the grounds for the instant judgment subject to a retrial. Therefore, barring any special circumstance, the circumstance that each conviction was revoked in the retrial claimed by the principal or his/her bereaved family, and the final judgment of innocence became final and conclusive shall be deemed to constitute a separate independent ground for retrial corresponding to “when a criminal judgment, which served as the basis for the judgment, was altered by another trial” under Article 451(1)8 of the

Nevertheless, in determining the grounds for retrial under Article 451(1)8 of the Civil Procedure Act, the lower court determined otherwise, on the ground that, where there are common grounds for retrial for each criminal judgment which forms the basis of the judgment on retrial, separate grounds for retrial may not be deemed to have occurred whenever the individual criminal judgment on retrial becomes final and conclusive in the retrial, on the grounds that, in full, the criminal judgment on 21 persons, including U, etc., who can be deemed to have substantially changed the contents of the judgment on retrial by another final and conclusive judgment, may be deemed to have become final and conclusive on December 7, 2011 or at the latest, until the judgment on innocence was final and conclusive on February 4, 2012, which became final and conclusive until the judgment on innocence was rendered final and conclusive. In so doing, the lower court determined that there was no further ground for retrial for retrial as to the judgment on retrial of this case on February 4, 2012. In so determining, the lower court erred by misapprehending the legal doctrine on

3. Therefore, without examining the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

The presiding judge shall keep the record of the Justice

Justices Lee Dong-won

Justices Park Jong-young

Justices Kim Gin-soo