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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, “The same shall not apply to cases where the parties have asserted the cause by an appeal, or have known it to the knowledge of it.”
However, if there is an omission in judgment, the original of the judgment may be served and the reason for the judgment can be known if it is read. Therefore, barring any special circumstance, it can be known that there was omission in judgment at the time of being served with the original of the judgment, and it could be asserted as the reason for appeal. However, a lawsuit for retrial may not be brought, unless
(See Supreme Court Decision 2005Da58236 Decided January 12, 2006). Article 451(1) proviso of the Civil Procedure Act includes not only cases where an appeal was filed despite the knowledge that there was a cause for a retrial, but also cases where a judgment becomes final and conclusive as it was because the appeal was not filed in the appellate trial, despite the knowledge that there was a cause for a retrial.
(See Supreme Court Decision 91Da29057 Decided November 12, 1991. According to the records, the Plaintiff’s failure to file a final appeal on October 28, 2015, which became final and conclusive on November 12, 2015 due to the Plaintiff’s failure to serve the original copy of the judgment subject to a final judgment on October 28, 2015. As such, the case where the Plaintiff’s failure to file a final appeal despite being served with the original copy of the judgment subject to a final judgment becomes final and conclusive as it is due to the Plaintiff’s failure to file a final appeal may not file a lawsuit for a final judgment on the ground
Therefore, the lawsuit of this case is unlawful and thus it is so decided as per Disposition.