[1] The meaning of "when the false statement by a witness, which is a ground for a retrial under Article 422 (1) 7 of the Civil Procedure Act, becomes an evidence of the judgment"

[2] Requirements for invalidation of declaration of intention by duress

[1] "When the false statement of a witness, which is a ground for a retrial under Article 422 (1) 7 of the Civil Procedure Act, becomes an evidence of a judgment" refers to a case where the false statement is provided as direct or indirect material of fact-finding that affects the text of the judgment, and it is probable that the text of the judgment would have changed if the false statement had not been made. Thus, if the false statement does not have any influence on the text of the judgment, it does not constitute a ground for retrial even if the court rendered a final judgment of conviction of perjury with respect to the false statement.

[2] In order to become null and void without being limited to the cancellation of a defective declaration of intent by duress, the degree of coercion is not merely to make the other party feel fears, but to the extent that the declaration of intent was made by the person who made the declaration of intent in a state of completely deprived of the possibility of making the decision by itself, and only the external appearance of the juristic act was made.

[1] Article 422(1)7 of the Civil Procedure Act / [2] Article 110 of the Civil Act

[1] Supreme Court Decision 92Da33695 delivered on Nov. 9, 1993 (Gong1994Sang, 58), Supreme Court Decision 94Meu604 delivered on Apr. 14, 1995 (Gong1995Sang, 1863), Supreme Court Decision 97Da42922 delivered on Dec. 26, 1997 (Gong1998Sang, 508) / [2] Supreme Court Decision 95Da1460 delivered on Oct. 11, 1996 (Gong196Ha, 3285), Supreme Court Decision 95Da4038 delivered on Dec. 23, 1996 (Gong197Sang, 492), Supreme Court Decision 196Da305379 delivered on Mar. 14, 1997 (Gong1997Da136379 delivered on Mar. 14, 1997)

Korea

Respondent (Re-Appellant, Attorneys Kim Jong-sung et al., Counsel for the plaintiff-appellant)

Seoul District Court Decision 96Na201 delivered on July 15, 1997

The appeal is dismissed. The costs of appeal are assessed against the respondent (Re-Appellant).

The Respondent (Re-Appellant Plaintiff)’s ground of appeal is examined.

Article 422(1)7 of the Civil Procedure Act provides that "when a false statement by a witness, which is a ground for retrial under Article 422(1)7 of the same Act, becomes an evidence of a judgment" means a case where the false statement is provided as direct or indirect material for fact-finding that affects the order of the judgment, and the text of the judgment would have to vary if the false statement had not been made. Therefore, if the false statement does not affect the order of the judgment, even if the false statement was convicted of perjury, it does not constitute a ground for retrial (see, e.g., Supreme Court Decision 92Da33695, Nov. 9, 1993; 9Da3695, Nov. 9, 199). Furthermore, in order to invalidate a legal act by duress, it shall not be limited to the cancellation of a defective declaration of intent by duress, but it shall not be sufficient that the degree of coercion would cause the other party to feel a mere illegal threat, and it shall be limited to the external form of the legal act made.

According to the reasoning of the judgment of the court below, the court below held that since the judgment subject to a retrial was not affected by the decision subject to a retrial, there is no ground for retrial under Article 422 (1) 7 of the Civil Procedure Act in the judgment subject to a retrial, and the judgment of the court below is just in light of the aforementioned legal principles and records, and there is no error in the misapprehension of legal principles as to the grounds for a retrial or in the misapprehension of legal principles as alleged in the grounds for a retrial as a ground for a retrial under Article 422 (1) 7 of the Civil Procedure Act, even if the facts recognized as the judgment subject to a retrial were to be proved by the above witness's false statement, it is difficult to recognize that the above witness's false statement was completely deprived of the freedom of decision-making, and therefore, it cannot be said that there was no ground for retrial under Article 422 (1) 7 of the Civil Procedure Act.

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

Justices Song Jin-hun (Presiding Justice)