A. Where an application for a final appeal is dismissed on the ground that it does not constitute grounds for filing an application for a final appeal, whether to request a retrial (affirmative)

B. Whether the facts of the cause of the claim that conflict with the res judicata are substantive (negative)

A. The application for a final appeal is permitted only for a case that contains important matters concerning statutory interpretation, and where the application for a final appeal is dismissed on the ground that it does not fall under this, the request for final appeal cannot be rejected by applying the proviso of Article 422(1) of the Civil Procedure

B. In a case where the plaintiff's claim should be rejected as it goes against the res judicata of the final and conclusive judgment, there is no need to determine the substantive legitimacy of the fact of the claim.

(a) Article 12(1) of the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings and Article 422(1) of the Civil Procedure Act;

A. Supreme Court Order 88Meu1206 Decided July 11, 1989 (Dong-dong) dated November 28, 1989

Plaintiff

Korea Exchange Bank

Seoul High Court Decision 87Na2873 delivered on November 25, 1987

Seoul High Court Decision 88ReNa131 delivered on June 28, 1989

The appeal application is dismissed.

The grounds for applying for an appeal are deemed.

According to the reasoning of the judgment of the court below, the court below rejected the plaintiff's lawsuit of retrial in this case without examining whether there was a neglect of determination as provided in Article 422 (1) 9 of the Civil Procedure Act on the ground that the grounds for retrial under Article 422 (1) 9 of the Act (hereinafter referred to as the "Act") could not be considered as grounds for retrial if the party asserted or did not know the grounds for retrial by appeal, but the plaintiff (the plaintiff, hereinafter referred to as the "the plaintiff") could not bring a lawsuit for retrial on the ground that there was an assertion of the same grounds as the plaintiff's head in the written reason for filing a petition for an appeal against the judgment subject to retrial. However, the court below rejected the plaintiff's lawsuit of retrial in this case without examining whether there was an omission of determination as provided in Article 422 (1) 9 of the Act as alleged by the plaintiff on the ground that the application for a permit for a retrial is permitted only for a case that contains an important matter regarding statutory interpretation, and thus the appeal is dismissed by applying the proviso of Article 422 (1).

However, according to the records of the case, in a lawsuit subject to a retrial, the defendant (the defendant for a retrial; hereinafter the same shall apply) did not dispute the facts that the procedure for the registration of ownership transfer was completed in the name of the defendant regarding the real estate of this case among the plaintiff's main facts, but stated that the remaining facts of the assertion are clearly claimed (the plaintiff's reply, March 9, 1987, and March 17 of the same year). Thus, it cannot be deemed that the defendant declared the plaintiff's assertion in favor of the facts of the plaintiff's assertion. Further, the judgment subject to a retrial is rejected on the ground that the plaintiff's claim goes against the res judicata effect of the final judgment, and thus, if the plaintiff's claim should be rejected as it goes against the res judicata effect of the final judgment, there is no need to make a

Therefore, the judgment subject to a retrial rejected the Plaintiff’s claim on the grounds that the Defendant did not recognize the fact that the Plaintiff’s cause of the claim was a constructive confession, and that it goes against res judicata without determining the substantive legitimacy of the fact that the Plaintiff’s cause of the claim, and it cannot be said that there was an error of law in disregarding the judgment as to important matters that may affect the judgment

Therefore, the conclusion of the court below that rejected the plaintiff's request for retrial is just and it cannot be deemed that the grounds for appeal under Article 12 (1) of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings, which was based on the premise that there was a ground for retrial that omitted the judgment falling under Article 422 (1) 9 of the Act.

Therefore, the application for the final appeal of this case is dismissed because it is considered that it is without merit. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Young-ju (Presiding Justice)