A. The meaning of “when the document constituting evidence of judgment has been forged or altered” as a ground for a retrial under Article 422(1)6 of the Civil Procedure Act

B. The meaning of “when the false statement of a witness becomes evidence of the judgment” as a ground for a retrial under subparagraph 7 of the same paragraph

A. “When a document constituting a ground for retrial under Article 422(1)6 of the Civil Procedure Act has been forged or altered” refers to the case where a forged or altered document was adopted as a evidence of fact-finding that served as the basis for maintaining the text of the judgment. The document itself, which was forged or altered, does not constitute a ground for retrial under the above Article 422(1)6 of the Civil Procedure Act even if there was a final and conclusive judgment of conviction that the document was altered unless it was adopted as a evidence for fact-finding

B. "When the false statement of a witness becomes evidence of the judgment" as a ground for retrial under subparagraph 7 of the same paragraph refers to a case where the false statement is provided as fact-finding material affecting the order of judgment, and there is a possibility that if there was no false statement, the text of the judgment would be changed if there would be no false statement. Thus, in a case where only the remaining evidence except the false statement does not affect the text of the judgment, even if the false statement was received a final and conclusive judgment of conviction, it does not constitute a ground for retrial.

section 3.

(a) Article 422(1)6(b) of the Civil Procedure Act; Article 422(1)7 of the same Act

A. Supreme Court Decision 63Da458 delivered on October 30, 1963, Decision 63Da458 delivered on May 21, 1968, Supreme Court Decision 68Da245,246 decided on January 18, 1983, Decision 82Nu473 decided on February 22, 1991 (Gong191,047), Decision 91Da3179, 3186 decided on June 12, 1992 (Gong192, 192, 2132) (Gong192, 2132)

[Judgment of the court below]

Defendant (Re-Appellant) and two others, Counsel for the plaintiff-appellant-appellee)

Seoul High Court Decision 90Rena523 delivered on June 25, 1991

Seoul High Court Decision 88Na16190 delivered on October 27, 1989

The appeal is dismissed.

The costs of appeal shall be assessed against the defendant (Plaintiffs for retrial).

The grounds of appeal by the Defendant’s attorney are examined together (the grounds of appeal are examined to the extent of supplement in case of the grounds of appeal).

1. As to the grounds for a retrial under Article 422(1)6 of the Civil Procedure Act

Inasmuch as a document constituting a ground for retrial under the above provision of the law was adopted as evidence of fact-finding that served as the basis for maintaining the text of the judgment (see, e.g., Supreme Court Decision 87Meu2425, Mar. 14, 1989). Thus, insofar as a document forged or altered is not admitted as evidence of fact-finding of the judgment subject to retrial, it cannot be deemed as a ground for retrial under the above provision of the law, on the ground that there was a final judgment of conviction that the document was altered.

In this case, the court below held that even if there was a final and conclusive judgment of conviction that the contract was modified as to the certificate No. 2, since it is not a sales contract (Evidence No. 2) but another sales contract (Evidence No. 6-9) that did not contain any alteration in the modified part, it cannot be a ground for retrial under the above provision of this Act. Such a ground for retrial is justified as it is in accordance with the above legal principle.

No. 18-4 and 22-6 of the evidence cited by the judgment subject to a retrial (written evidence No. 18-4 and 22-2 of the evidence No. 18-5, the written evidence No. 18-5, 6 and 22-7, and 36 of the evidence No. 18-7, the written evidence No. 23-7 of the evidence No. 22-2, the written statement No. 22-35 of the evidence No. 6-2, and the written evidence No. 49 of the evidence No. 6-2 of the judgment subject to a retrial) are also based on the sales contract (Evidence No. 2 of the judgment), which was modified, or the documents which were written in the psychological situation where the evidence is fabricated to make the false statement as true. Thus, the submission of these documents in the judgment subject to a retrial is ultimately different from that of indirectly adopting a sales contract itself. However, this is not a separate opinion in light of the purport of the retrial system.

In addition, even though the sales contract of Gap evidence No. 5 was forged, there is an unfair evidence in which the judgment subject to a retrial was based on the evidence, which is not alleged in the original judgment (the record of the case subject to a retrial recognizes the authenticity of the defendant according to the records of the case subject to a retrial). However, unless there is a final judgment of conviction as to the forgery or alteration of the contract, the above argument cannot be considered as grounds for a retrial. Thus, the above argument cannot be accepted.

There is no violation of the rules of evidence, incomplete deliberation, or misapprehension of the legal principle as to Article 422 (1) 6 of the Civil Procedure Act, which points out in the judgment of the court below. There is no reason for this issue.

2. As to the grounds for retrial under Article 422(1)7 of the Civil Procedure Act

When the false statement of a witness, which is a ground for retrial under the above provision, is a evidence of the judgment, refers to the case where the false statement is provided as a material for fact-finding that affects the order of the judgment. If there is a possibility that the text of the judgment would have changed if the false statement had not been made, then the remaining evidence except the false statement would not affect the text of the judgment. Thus, even if the false statement was made by the remaining evidence, it does not constitute a ground for retrial even if the false statement was made by the final judgment of conviction (see, e.g., Supreme Court Decisions 89Meu24247, Feb. 22, 1991; 87Meu356, Jun. 23, 1987).

이 사건에서 원심은, 증인 소외인이 위증으로 유죄판결을 받은 허위진술부분은, 판시 현금보관증의 작성과 관련하여, 그 위조 또는 내용의 진위 여부가 아닌, "피고가 위 현금보관증을 직접 작성, 서명날인 하였다."고 한 작성방법에 관한 진술내용에 불과한데, 재심대상판결은 위 증언의 직접적인 대상인 현금보관증 자체를 사실인정의 증거로 채택하지 않았을 뿐 아니라, 명시적으로 소외인의 일부증언만을 증거로 채용한다고 설시하고 있기 때문에 과연 위 위증부분까지 채택증거에 포함되었는지도 분명하지 아니하나, 가령 위 위증부분이 증거로 설시된 부분에 포함된 것으로 본다 하더라도, 재심대상판결 이전에 위 위증과 관련된 형사기록과 유죄의 제1심판결이 이미 증거로 제출되었을 뿐 아니라, 재심대상판결에 대한 상고허가신청이유로서 위 위증사실까지 거론하면서 재심대상판결의 사실인정이 채증법칙에 위배된다고 주장하였으나 상고허가신청이 기각된 점, 그밖에 위 재심대상판결이 그 결론을 내기 위하여 지지증거로 쓴 나머지 여러 증거들을 종합하여 보면 위 소외인의 현금보관증 작성방법에 국한된 위와 같은 내용의 허위진술이 재심대상판결에 영향을 주었고 그 허위진술을 참작하지 아니하였더라면 재심대상사건을 심리한 법원이 그와는 다른 결론의 판결을 하였을 개연성이 있었다고 보이지는 아니하므로, 위 증언부분에 대한 유죄의 확정판결은 이 사건에서 위 법조 소정의 재심사유가 되지 아니한다는 취지로 판시하고 있는바, 원심의 설시이유를 재심대상판결이 거시한 제반증거들과 대조하여 살펴보면 원심의 위와 같은 사실인정과 판단은 옳은 것으로 수긍된다(원심은, 위 증인의 허위진술이 재심대상판결에 영향을 주지 않닸다고 판단함에 있어, 피고가 재심대상판결에 대하 상고허가신청이유로서 위 증인의 위증사실을 거론하였음에도 상고허가신청이 기각된 점까지 들고 있으나, 그 취지는 위와 같은 허위진술을 고려하지 않는다 하더라도 재심대상판결의 결론이 달라지지 않았을 것이라는 원심 판단을 뒷받침하는 보충자료로서 설시한 것에 불과하고, 소론과 같이 상고허가신청이유로 주장된 사유가 배척되면 동 사유가 재심청구사유가 될 수 없다는 논리 하에 설시된 것으로는 보이지 아니하므로, 원심판단에 소론이 지적하는 바와 같은 판례위반이 있다고는 볼 수 없다).

In the Supreme Court Decision 89Meu13803 Decided November 28, 1989, a party member pointed out in the theory of the lawsuit, although the false statement, which was found guilty of the perjury, was not directly admitted as direct evidence, if it was used as comparison evidence and indirectly affected the judgment, it can be a ground for retrial. Thus, it is not an appropriate case to attack the judgment of the court below, but another case, which points out the theory of the lawsuit, is not appropriate to be compared to the case.

In the judgment below, there is no violation of the rules of evidence, incomplete deliberation, or misapprehension of the legal principle as to the grounds for a retrial under Article 422 (1) 7 of the Civil Procedure Act, which points out in the court below's theory. The grounds

3. Other arguments pointed out as to the circumstances surrounding the instant case are nothing more than pointing out to criticize evidence preparation and fact-finding of the judgment subject to a retrial, and thus, it cannot serve as a ground for attacking the judgment below that limited to the existence of grounds for a retrial.

4. Therefore, the defendant's appeal is dismissed as it is without merit. It is so decided as per Disposition by the assent of all participating Justices on the bench.