beta
Text
1. The lawsuit of this case shall be dismissed.
2. The costs of retrial shall be borne by the Defendant (Counterclaim Plaintiff, or Plaintiff for retrial).
Reasons
The defendant asserts that there are grounds for retrial for omission of judgment under Article 451 (1) 9 of the Civil Procedure Act in the judgment subject to review.
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.
(2) According to the records, the Defendant did not appeal the original copy of the judgment subject to a retrial on October 28, 2015 and became final and conclusive on November 12, 2015. As such, the case where the Defendant did not appeal the original copy of the judgment subject to a retrial even though having served the original copy of the judgment subject to a retrial, and the judgment becomes final and conclusive as it was due to the Defendant’s failure to file a final appeal, as stated in the foregoing facts, constitutes “when he did not know the grounds for a retrial,” under the proviso of Article 451(1) of the Civil Procedure Act, and thus, the Defendant cannot file a lawsuit for a retrial.
As such, the lawsuit of this case is unlawful and thus, it is decided as per Disposition.