[1] Meaning of grounds for retrial under Article 451(1)8 of the Civil Procedure Act / Where several convictions were the basis for a judgment subject to retrial, and each conviction became final and conclusive after the final judgment became invalid through a retrial, whether either of the grounds for retrial becomes a separate independent ground for retrial (affirmative in principle), and whether the same applies to cases where the grounds for retrial recognized in a criminal retrial for each conviction are common or the grounds for a judgment of innocence are identical (affirmative)

[2] Whether a judgment on all the parties' arguments or methods of offence and defense should be indicated on the grounds of the written judgment (negative), and whether an omission of judgment exists in a case where, although no specific and direct judgment is indicated on the parties' allegations, it is possible to find out whether the allegations were quoted in the overall purport of the reasoning of the judgment, or where it is obvious that the allegations should be rejected without actually making a judgment (negative)

[1] In a case where there is a serious defect in which the validity of a final judgment is not recognized, a retrial is exceptionally prepared to realize specific justice by extinguishing the legal stability in accordance with the final and conclusive judgment and correcting the defect.

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, has been altered by another judgment or administrative disposition thereafter, and is finally and retroactively changed by another judgment or administrative disposition. Here, “the basis of a judgment” refers to cases where a judgment becomes the basis of a final and conclusive judgment or where the contents of a judgment, which form the basis of a final and conclusive judgment, become a data for fact-finding at a final

As one of the grounds for retrial constitutes a separate grounds for a retrial, in a case where multiple convictions were the basis of the judgment subject to retrial and the judgment of innocence became final and conclusive after the convictions became invalid through a retrial, the circumstance that either of the convictions loses its effect, and the judgment of innocences became final and conclusive ought to be considered as a separate independent ground for retrial, barring special circumstances. Unless there are special circumstances, each of the grounds for retrial recognized in the criminal retrials, which form the basis of the judgment subject to retrials, or

[2] The reasoning of a written judgment is sufficient to indicate the judgment on the party’s assertion and other means of offence and defense to the extent that it can be recognized that the text is justifiable, and there is no need to determine all of the parties’ allegations or means of offence and defense (Article 208 of the Civil Procedure Act). Therefore, even if the court’s judgment does not specify specific and direct determination on the matters alleged by the party, if it is possible to find out that the assertion was cited or rejected in light of the overall purport of the reasoning of the judgment, it cannot be deemed an omission of judgment. Even if the court’s judgment did not actually state the specific and direct determination on the matters alleged by the party, the omission

[1] Article 451 (1) 8 of the Civil Procedure Act / [2] Articles 208 and 451 (1) 9 of the Civil Procedure Act

[1] Supreme Court Decision 87Meu2088 delivered on December 8, 1987 (Gong1988, 278) Supreme Court Decision 91Da45691 delivered on July 24, 1992 (Gong1992, 2527) Supreme Court Decision 94Da20570 Delivered on May 31, 1996 (Gong196Ha, 2004) / [2] Supreme Court Decision 2006Da218 Delivered on July 10, 2008 (Gong2008Ha, 1146)

Plaintiff (Re-Appellant) 1 et al., a party to the lawsuit of the deceased non-party 1 (Attorney Choi So-young, Counsel for the plaintiff-appellant)

Republic of Korea (Government Law Firm Corporation, Attorneys Seo Young-young et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2018ReNa374 decided November 20, 2018

All appeals are dismissed. The costs of appeal are assessed against Defendant (Re-Defendant).

The grounds of appeal are examined.

1. Whether the period for filing a lawsuit for retrial complies with (Ground of appeal No. 1)

The Plaintiff (hereinafter “Plaintiff”) asserted that there was a ground for retrial as stipulated in Article 451(1)8 of the Civil Procedure Act in the instant judgment subject to a retrial, on the grounds that a conviction against the deceased Nonparty 2, Nonparty 1, and Nonparty 3 (hereinafter “the deceased Nonparty 2, etc.”) was based on the instant judgment subject to retrial (Seoul High Court 68No24), and that there was a ground for retrial as stipulated in Article 451(1)8 of the Civil Procedure Act in the instant judgment subject to a retrial.

The lower court determined that the instant lawsuit filed on July 3, 2018, which was within 30 days from that time, was lawful within the period stipulated in Article 456(1) of the Civil Procedure Act, on the grounds that the Plaintiffs knew that the result of criminal review against the deceased Nonparty 2, etc. was only known on or around June 28, 2018, and there was no other evidence to view otherwise.

Examining the reasoning of the lower judgment in light of the record, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules.

2. Whether there is a ground for retrial under Article 451(1)8 of the Civil Procedure Act, whenever a judgment of innocence becomes final and conclusive, where multiple convictions, which forms the basis for the judgment subject to retrial, were altered through a retrial for common reasons (ground of appeal No. 2)

Where there is a serious defect in which the validity of a final and conclusive judgment cannot be recognized, a retrial is exceptionally prepared to realize specific justice by lowering legal stability according to the final and conclusive judgment and correcting the defect (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 a criminal case or any other judgment or administrative disposition, which forms the basis of a judgment, has been altered by a different judgment or administrative disposition” (see, e.g., Supreme Court Decision 87Meu2088, Dec. 8, 1987). This refers to cases where a judgment or administrative disposition, which forms the basis of a judgment, has been finally and retroactively changed by another judgment or administrative disposition (see, e.g., Supreme Court Decision 87Meu2088, Dec. 8, 1987). Here, the term “the basis of a judgment” refers to cases where a judgment has legal binding force or where the contents of a judgment have become materials for fact-finding in a final and conclusive judgment, and it is likely that the said judgment may affect the fact-finding in a final and conclusive judgment (see, e.

As one of the grounds for retrial constitutes a separate grounds for a retrial, in a case where multiple convictions were the basis of the judgment subject to retrial and the judgment of innocence became final and conclusive after the convictions became invalid through a retrial, the circumstance that either of the convictions loses its effect, and the judgment of innocences became final and conclusive ought to be considered as a separate independent ground for retrial, barring special circumstances. Unless there are special circumstances, each of the grounds for retrial recognized in the criminal retrials, which form the basis of the judgment subject to retrials, or

The lower court determined that the circumstance, which became final and conclusive as a result of a criminal review against the deceased Nonparty 2, separately from the result of the criminal review against Nonparty 4, constitutes grounds for retrial as prescribed by Article 451(1)8 of the Civil Procedure Act. For that reason, the judgment of conviction against the deceased Nonparty 2, etc. became the basis for the instant judgment subject to retrial, and the change of conviction against the deceased Nonparty 2, etc. may sufficiently affect the fact-finding of the instant judgment subject to retrial, and thus, it cannot be deemed that the defect is the same as that caused by the conviction against Nonparty 4, or that it cannot be deemed as being absorption, or that it is necessary to correct it separately.

Examining the reasoning of the lower judgment in light of the foregoing legal doctrine and the record, the lower judgment is justifiable in accordance with the foregoing legal doctrine, and did not err by misapprehending the legal doctrine on grounds for retrial.

3. Whether determination on the assertion of the period for a retrial of five years under Article 456(3) and (4) of the Civil Procedure Act is omitted (ground of appeal No. 3)

In the reasoning of a written judgment, it is sufficient to indicate the judgment on the party’s allegations and other means of offence and defense to the extent that it can be recognized that the text is justifiable, and there is no need to determine all allegations by the parties or methods of offence and defense (Article 208 of the Civil Procedure Act). Therefore, even if no specific and direct judgment on a party’s allegations is indicated in a written judgment, it may not be deemed omission of judgment if it can be known that the assertion was accepted or rejected in light of the overall purport of the reasoning of the judgment, even if no specific and direct judgment is indicated in the written judgment (see, e.g., Supreme Court Decision 2006Da218, Jul. 10, 2008).

According to the records, if the judgment of innocence against the deceased non-party 2, etc. at the court below was not independent of the judgment of innocence against the 21 person including the non-party 5 and the judgment of innocence against the non-party 4, etc., the defendant argued that the lawsuit of this case brought five years after the date when the judgment of innocence against the non-party 5 and the non-party 4 became final and conclusive, should be dismissed.

However, as seen earlier, the lower court determined that the circumstance in which the judgment of innocence against the deceased non-party 2, etc. became final and conclusive becomes grounds for retrial under Article 451(1)8 of the Civil Procedure Act, independent of the circumstances in which the judgment of innocence against the non-party 4 became final and conclusive. The lower court can be deemed to have the purport of not accepting the Defendant’s assertion. Therefore, the lower court did not err

4. Conclusion

The Defendant’s appeal is dismissed in entirety as it is without merit, 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.

Justices Lee Dong-won (Presiding Justice)