Supreme Court Decision 2009Du22874 (No. 25, 2010)

When the ruling to institute a retrial conflicts with the final and conclusive judgment rendered before the ruling

The effect of a final and conclusive judgment previously rendered on a party to the judgment subject to a retrial refers to the time both judgments conflict with each other, and even if a final and conclusive judgment rendered before is related to a case similar to that subject to a retrial, if res judicata of such judgment does not reach the person subject to a retrial on the grounds of different

The contents of the decision shall be the same as attached.

Requests for retrial shall be dismissed.

The litigation costs for retrial shall be borne by the plaintiff.

The grounds for retrial shall be considered.

Article 451(1)2 and 4 of the Act on Special Cases Concerning the Procedure for Appeal, the Plaintiff (Plaintiffs) did not make any decision on the grounds of appeal by dismissing the appeal on the ground that the judgment subject to a retrial constitutes a ground for non-judicial review and thus, constitutes a ground for appeal under Article 451(1)9 through 10 of the Civil Procedure Act. In addition, the Plaintiff’s assertion that the judgment subject to a retrial lacks the statement of the purport of the claim and appeal, and that there is any illegality, which practically abolished Article 154(5) of the Enforcement Decree of the Income Tax Act, by deeming that the judgment subject to a retrial falls under a ground for non-judicial review and thus, constitutes a ground for appeal.

However, the grounds for retrial under Article 451(1)10 of the Civil Procedure Act are established in order to coordinate conflict with the res judicata effect of a final and conclusive judgment rendered prior to the res judicata effect of the judgment subject to retrial. Thus, when a final and conclusive judgment conflicts with a final and conclusive judgment rendered prior to the final and conclusive judgment that was rendered prior to the institution of a retrial, it refers to the case where both rulings conflict with that of the parties to the judgment subject to retrial. Even if a final and conclusive judgment previously rendered relate to a case similar thereto, if res judicata effect of the judgment differs from the parties to the judgment subject to retrial, it does not constitute a ground for retrial under the above provision (see Supreme Court Decision 94Da383, Aug. 26, 1994). Accordingly, it is evident that the final and conclusive judgment asserted by the Plaintiff (Plaintiff) on the record does not constitute a legitimate ground for retrial, and therefore, this part cannot be deemed a legitimate ground for retrial under Article 451(1)10 of the Civil Procedure Act (see Supreme Court Decision 2005Da45797, May 297, 19797, etc.).

Therefore, the retrial is dismissed, and the costs of the lawsuit are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.