Whether the action for retrial instituted against a final and conclusive judgment is legitimate

Even if a lawsuit filed prior to the final and conclusive judgment becomes final and conclusive while the lawsuit for retrial was not dismissed on the ground of its illegality, the lawsuit for retrial is not deemed legitimate.

Article 422 of the Civil Procedure Act

Plaintiff (Re-Defendant)

Defendant (Attorney Lee Young-chul, Counsel for the defendant-appellant)

Seoul High Court Decision 79Na17 delivered on April 4, 1980

The appeal is dismissed.

The costs of appeal shall be borne by the defendant.

The defendant (the plaintiff)'s ground of appeal is examined.

It is essential that a retrial can only be filed against a final judgment which has become final and conclusive. While a lawsuit for retrial filed prior to the final and conclusive judgment is not dismissed for the reason that the lawsuit for retrial is unlawful, the lawsuit for retrial is not legitimate, and even if the judgment becomes final and conclusive, the lawsuit for retrial is not deemed legitimate. Thus, the judgment of the court below in the same purport is just, and the defendant (Plaintiff for Retrial)'s assertion in the same purport is not just,

Therefore, this appeal is dismissed as it is without merit. The 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 Yang Byung-ho (Presiding Justice)