Whether the grounds for retrial under Article 422 (1) 7 of the Civil Procedure Act can be the grounds for a right after the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings is enforced.

Article 11 (1) 1, 2, and 3 of the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings, which provides for special cases concerning civil procedure, an appeal of a right after the enforcement of the same Act shall be limited to the case where there are grounds under Article 11 (1) 1, 2, and 3 of the same Act, and the appeal of a right on other grounds shall not be permitted. Thus, the grounds under Article 422 (1) 7 of the Civil Procedure Act shall not be a legitimate ground for appeal of a right.

Article 422(1)7 of the Civil Procedure Act, Article 11 of the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings

Supreme Court Decision 81Da1069, 1070, 81Meu695, 696 Decided April 27, 1982

Park Young-young, Attorney Kang Jong-hee, Counsel for the defendant-appellant

Intervenor joining the Plaintiff

Attorney Lee Jin-hun et al., Counsel for the plaintiff-appellant

Seoul High Court Decision 79Na3248 delivered on April 7, 1981

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

The grounds of appeal are examined.

1. As to the assertion of rights:

Before the enforcement of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings, the grounds for retrial under Article 422(1)1, 2, and 3 of the Civil Procedure Act were absolute grounds for appeal under Article 394 of the same Act, and the grounds for appeal under Article 422(1)4 shall be pursuant to the proviso of Article 422(1) of the same Act. The precedents of the party members (see Supreme Court Decision 62Da204 delivered on August 2, 1962), as pointed out, stipulate special cases concerning civil procedure under Article 11 of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings and the grounds for appeal under Article 11 (1) 1, 2, and 3-1 of the same Act, are available only when the grounds for appeal falling under any of the above Article 422(1)1, 2, and 3-1 of the same Act exist, and thus, the appeal after the enforcement of the aforementioned Special Cases cannot be deemed legitimate grounds for appeal for reasons for appeal under Article 1658(1,2,2,2060.16.7).

2. With respect to a licensed appeal:

According to the reasoning of the judgment below, the court below rejected the plaintiff's claim on the ground that it is difficult to believe it in light of the testimony of Non-Party 1 and Non-Party 2, the witness of the first instance court and Non-Party 2, who are presumed to have the authenticity of the whole document, and there is no other evidence to acknowledge the plaintiff's assertion, since the non-party 1's testimony of Non-Party 1, a witness of Non-Party 1, a witness of Non-Party 1, a witness of the first instance court, and the non-Party 2, a witness of Non-Party 2, a witness of Non-Party 1, a witness of Non-Party 1, a witness of Non-Party 2, who are presumed to have the authenticity of the whole document, committed a forgery of the plaintiff's seal impression, thereby forging the relevant documents, and completed the registration of the establishment of a neighboring mortgage of this case.

However, the court below's testimony of non-party 1, a witness of the court of first instance, which is a evidence against the plaintiff's rejection of the evidence consistent with the plaintiff's assertion, shall not be registered with the plaintiff's consent since it delegated the non-party 2, a judicial assistant, to register the establishment of a mortgage of this case with the plaintiff's consent. The non-party 2's testimony of non-party 2 as a witness of the court below, as a judicial assistant, registered the establishment of a mortgage of this case with the plaintiff's consent. According to the summary order and confirmation of the plaintiff's submission of the plaintiff, the non-party 2 was proved to have obtained the plaintiff's consent in the testimony of the court below, and it can be recognized that the non-party 2 was proved to have been issued a summary order of conviction of the defendant on March 23, 1981, and confirmed on April 1 of the same year as the period for filing

Therefore, in this case, insofar as the testimony of Nonparty 2, which was the most basic evidence to reject the evidence that corresponds to the plaintiff's assertion, becomes guilty as above, it is reasonable to reverse the judgment of the court below and make a new trial and determination in consideration of the above facts, and therefore, the arguments are reasonable.

Therefore, the judgment of the court below is reversed and remanded. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Chang-chul (Presiding Justice)