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(영문) 울산지방법원 2015.12.30 2015재나128
대여금
Text

1. The lawsuit of this case shall be dismissed.

2. The costs of retrial shall be borne by the plaintiff.

purport, purport, ..

Reasons

The plaintiff asserts that there are grounds for a retrial for omission of judgment under Article 451 (1) 9 of the Civil Procedure Act in the judgment subject to a retrial.

The proviso of Article 451(1) of the Civil Procedure Act provides that a lawsuit for a retrial may not be instituted when a party has asserted a cause for a retrial by an appeal or fails to know it. Here, the phrase “when he/she does not know it even if he/she knows it,” should be interpreted to include not only the case where he/she did not appeal after having known that there was a cause for a retrial, but also the case where a judgment becomes final and conclusive because he/she did not appeal even though he/she knew that there was a cause for a retrial in the appellate court. The parties should be deemed to have known when he/she

According to the records, the Plaintiff may recognize the fact that he was not served with the original copy of the judgment subject to a retrial on November 1, 2011. As such, the Plaintiff cannot file a lawsuit for retrial on the ground that the case where the Plaintiff failed to file a final appeal despite being served with the original copy of the judgment subject to a retrial, which became final and conclusive as is due to the Plaintiff’s failure to file a final appeal, constitutes “when he did not know of the

Therefore, the lawsuit of this case is unlawful and thus, it is so decided as per Disposition.

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