The purport of the proviso of Article 406(2) of the Civil Procedure Act

Article 406 (2) (proviso) of the Civil Procedure Act provides that the court to which the case is remanded is bound by the actual judgment of the court of final appeal shall be bound by the judgment of the court of final appeal on the matter to be examined ex officio by the court of final appeal, and the fact-finding related to the case belongs to the exclusive authority of the court of final appeal. Thus, the fact-finding related to the case is somewhat inconsistent with the judgment of the court of final appeal on the merits, unless

Article 406(2) of the Civil Procedure Act

Supreme Court Decision 88Nu7 delivered on November 22, 1988 (dong)

[Defendant-Appellant] Park Jae-sik, Counsel for defendant-appellant

Head of the North Korean Office in Daegu Special Metropolitan City

Daegu High Court Decision 87Gu88 delivered on November 27, 1987

The appeal is dismissed.

The costs of appeal shall be assessed against the plaintiff.

According to the reasoning of the judgment below, the court below rejected the plaintiff's claim that the land in this case should be excluded from the vacant land because the land category in the public register is the site or orchard and dry field actually, and there is no evidence to acknowledge such fact, and that the plaintiff's acquisition of the land in this case does not constitute a ground for exclusion under the main sentence and proviso of Article 78-3 of the Enforcement Rule of the Local Tax Act, which is alleged by the plaintiff, and that only the Korea Land Development Corporation can construct apartment, and the plaintiff asserted that the use of the land in this case was prohibited. The land in this case is not prohibited from using the land in this case only if the operator of the apartment zone development project was designated as the apartment zone, and the land in this case should be excluded from the usage of the land in this case without being designated as the project operator, and it can be determined that the land in this case should not be excluded from the usage of the land in the public opinion or the objective evidence of Article 78-3 of the Enforcement Rule of the Local Tax Act as the land in this case's construction or the public opinion.

This paper argues that the decision of the court below is in violation of the decision of remanding a party member's case, but that the court to which the case was remanded to the first sentence of Article 406 (2) of the Civil Procedure Act is bound by the actual decision of the court of final appeal is bound by the decision of the court of final appeal. The fact-finding related to the case belongs to the exclusive authority of the court of final appeal (see Article 402 of the Civil Procedure Act). Thus, even though the fact-finding of the court below (see Article 402 of the Civil Procedure Act) is contrary to the decision of the court of final appeal's decision of remanding the case, it cannot be justified unless it is erroneous in the procedure, and the decision of the court

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

Justices Yoon Young-young (Presiding Justice)