(영문) 울산지방법원 2017.11.30 2016재나262

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(영문) 울산지방법원 2017.11.30 2016재나262

청구이의

Text

1. The lawsuit of this case shall be dismissed.

2. The costs of retrial shall be borne by the defendant;

purport, purport, ..

Reasons

1. According to the records on the determination of the judgment subject to a retrial, the Plaintiff filed a lawsuit of demurrer against the Defendant with the Busan District Court Decision 2010Da19791, Ulsan District Court Decision 2010Da19791, which rejected compulsory execution based on the judgment in the loan case No. 95Da14506, the Busan District Court rendered a judgment accepting the Plaintiff’s claim on September 17, 2010, and the Defendant appealed as 2010Na5687, but the judgment dismissing the Defendant’s appeal on April 28, 2011 (hereinafter “the judgment subject to a retrial”), but the Defendant appealed as Supreme Court Decision 201Da3935, July 28, 2011, which became final and conclusive as the judgment subject to a retrial was dismissed.

2. The defendant asserts to the effect 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 a retrial.

The proviso of Article 451(1) of the Civil Procedure Act provides that a party may not file a lawsuit for retrial if he/she has asserted a ground for retrial by an appeal or fails to know it, and the party should be deemed to have known when he/she was served the original copy of the judgment whether there exists a ground for retrial omitted in a judgment.

According to the records, although the defendant appealed on May 4, 201, the original copy of the judgment subject to a retrial was served, it can be recognized that the appeal was dismissed on July 28, 2011. Thus, even if there was an error of omission in the judgment subject to a retrial, as alleged by the defendant, the defendant constitutes “when the grounds for a retrial were asserted or did not know it,” under the proviso of Article 451(1) of the Civil Procedure Act, and thus, cannot file a lawsuit for

In addition, there is no evidence to view that there are other grounds for retrial in the judgment subject to review.

3. As such, the lawsuit of this case is unlawful and thus, it is so decided as per Disposition by the assent of all participating Justices.

참조조문

-민사소송법 제451조 제1항

-민사소송법 제451조 제1항 제9호

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