Whether a request for a retrial can be made on the grounds of a failure to dismiss the appeal dismissed for a trial due to a judgment or a violation of the Supreme Court precedents (negative)

Article 451(1)9 and 10 of the Civil Procedure Act, Article 4 of the Act on Special Cases Concerning the Procedure for Final Appeal

Supreme Court Decision 96Da325 delivered on November 22, 1996 (Gong1997Sang, 1701) 96Da479 delivered on May 7, 1997

Plaintiff Buddhist Temple

Defendant Incorporated Association

Supreme Court Decision 2008Da30741 Decided July 24, 2008

The request for retrial shall be dismissed. The costs of retrial shall be borne by the plaintiff (Plaintiff).

The grounds for retrial are considered.

The Plaintiff (hereinafter “Plaintiff”) asserts that the grounds of appeal on the judgment of the lower court subject to a retrial fall under Article 4(1)3, 4, and 5 of the Act on Special Cases Concerning the Procedure for Appeal, and does not constitute grounds for non-judicial review, but did not render any judgment on the grounds of appeal by dismissing the appeal, deeming that the judgment subject to a retrial falls under grounds for non-judicial review and thus, did not constitute grounds for non-judicial review. Therefore, the Plaintiff’s assertion that the judgment became subject to a retrial

However, the ground for dismissing a case falling under Article 4 (1) 3, 4, and 5 of the Act on Special Cases Concerning the Procedure for Appeal does not constitute a legitimate ground for retrial, and as long as the argument on the ground for appeal on the ground for appeal by the judgment subject to review falls under a ground for rejection of deliberation as provided by the Act on Special Cases Concerning the Procedure for Appeal of the Supreme Court and the appeal is dismissed without further deliberation, there is no room for omitting judgment on the ground for appeal by the judgment subject to review or violating the previous judgment by the party members (see, e.g., Supreme Court Decisions 95Nu176, Feb. 13, 1996; 96Da325, Nov. 22, 1996; 96Nu197, Feb. 25, 1997).

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

Justices Park Si-hwan (Presiding Justice)