The meaning of “effort of judgment” under Article 422(1)9 of the Civil Procedure Act (whether the grounds of appeal as to the matter of ex officio examination mentioned in the supplemental appellate brief after the lapse of the period for submitting the appellate brief and whether the grounds of appeal are grounds for retrial (affirmative)

Even if a judgment of ex officio investigation which is affected by a final and conclusive judgment is omitted, if the party concerned fails to assert it or fails to urge the investigation, it shall not be a ground for review under Article 422 (1) 9 of the Civil Procedure Act, but even if the grounds for appeal stated in the supplementary statement submitted after the deadline for submitting the appellate brief are about the ex officio investigation, it shall be a ground for review under Article 422 (1) 9 of the Civil Procedure Act, if the judgment is omitted.

Articles 422(1)9, 399, and 401 of the Civil Procedure Act

Supreme Court Decision 78Ma1027 Decided August 22, 1978, Supreme Court Decision 65Ma6 Decided September 7, 1965

Plaintiff

Seoul Special Metropolitan City Mayor

Supreme Court Decision 80Nu280 Delivered on July 7, 1981

The retrial lawsuit is dismissed.

Litigation costs shall be borne by the plaintiff.

The grounds for retrial shall be examined.

1. In case where a judgment was omitted on important matters that may affect the judgment under Article 422 (1) 9 of the Civil Procedure Act (hereinafter "the case"), the important matters are not matters to be examined ex officio. However, even if the judgment on the ex officio investigation which is influenced by the judgment was omitted during the reasons for the judgment, if the party did not assert it or urge the investigation, it shall not be a ground for retrial under the above Article 422 (1) 9 of the Civil Procedure Act (see Supreme Court Decision 78Ma1027 delivered on August 22, 1978), and the court of final appeal shall not be a ground for retrial under the above Article 399 and 401 of the Civil Procedure Act (see Supreme Court Decision 78Ma1027 delivered on August 22, 197). The court of final appeal shall be deemed to have been clearly considered as the provisions of Articles 399 and 401 of the same Act. Thus, if the grounds for appeal in the supplementary statement submitted after the deadline for submitting the appellate brief and the grounds for final appeal are not pertaining to the ex officio.

2. According to the records on this case, the plaintiff's appeal's legal representative's legal representative's legal representative's legal representative's legal representative's legal representative's legal representative's legal representative's legal representative's legal representative's legal representative's legal representative's legal representative's legal representative's legal representative's legal representative's legal representative's legal representative's legal representative's legal representative's legal representative's legal representative's legal representative's legal representative's legal representative's legal representative's legal representative's legal representative's legal ground for appeal was dismissed (1)'s legal representative's abuse of discretion's legal representative's legal representative's right of revocation of disciplinary action's legal representative's legal representative's legal representative's legal representative's legal representative's legal representative's legal ground for appeal, and (3) the legal representative's legal ground for appeal's legal representative's legal representative's legal representative's legal representative's legal representative's legal representative's legal representative's legal representative'

3. Accordingly, the assertion of abuse of discretionary power as to the review of this case is indicated in the supplementary statement submitted after the prescribed period of time, and as such, it does not constitute a case where the decision on important matters, which are grounds for retrial, was not made in the above final and conclusive judgment, even though it was not an ex officio investigation, it is evident as above.

However, since the existence of the benefit of a lawsuit belongs to the ex officio investigation according to the amnesty by the Ordinance of the Ministry of Health and Welfare stated in the supplementary statement of the above grounds for appeal, the above final judgment should have been determined, and as seen earlier, the decision was reversed, and therefore, there is a ground for retrial even if there are different points.

4. Furthermore, according to the provisions of Articles 5(2) and 4 of the General Amnesty Decree, which are supplementary grounds for appeal, the effect of amnesty and the benefit of lawsuit shall not be changed due to amnesty. This means that the effect of amnesty is not retroactive. Therefore, even if there is a general amnesty such as theory, it is not possible to recover the Plaintiff’s status as a public official due to dismissal even if there is a general amnesty such as theory, and therefore, there is a benefit in the lawsuit to seek revocation (see Supreme Court Decision 80Nu536 delivered on July 14, 1981). Accordingly, the grounds for appeal as to this point cannot be adopted, and the Supreme Court Decision cited by the theory of lawsuit cannot be adopted as a precedent because it is changed by the above judgment of all the above Supreme Court Decision. Therefore, it is not reasonable to reverse the appeal.

Therefore, the above final and conclusive judgment dismissing the appeal is justifiable in its conclusion, and therefore, this case is dismissed pursuant to Article 430 of the Civil Procedure Act, and the costs of the new trial are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Jeon Soo-hee (Presiding Justice)