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(영문) 서울행정법원 2017.08.11 2016재구합104
수사 부작위 항고
Text

1. The lawsuit of this case shall be dismissed.

2. The costs of retrial shall be borne by the plaintiff.

Reasons

1. In collusion with the Defendant (hereinafter “Defendant”), a judge involved in the judgment subject to a retrial by the Plaintiff (hereinafter “Plaintiff”) committed not only a crime such as preparation of false official document, fraud, abuse of authority, abandonment of duty, etc., but also a crime that prevents the Plaintiff from submitting a means of attack that may affect the judgment, and omitted a judgment on important matters that may affect the judgment by failing to investigate important evidence, etc. or by distorted the meaning of the evidence.

In addition, the ruling of the Seoul High Prosecutor's Office, which is the evidence of the judgment subject to a review, was forged or altered, and the defendants' false statements in the trial process were also based on the judgment subject to a review.

Therefore, there are grounds for retrial under Article 451(1)4 through 7, and Article 451(1)9 of the Civil Procedure Act in the judgment subject to retrial.

2. Determination on the legitimacy of the litigation for retrial of this case

A. Article 451(2) of the Civil Procedure Act, which applies mutatis mutandis to a retrial under Article 451(1)4 through 7 of the Civil Procedure Act, provides that “only when a judgment of conviction or a judgment of imposition of a fine for negligence becomes final and conclusive or a final and conclusive judgment of imposition of a fine for negligence cannot be rendered for reasons other than lack of evidence in the case of paragraph (1) 4 through 7, a suit for retrial may be filed.”

Therefore, in order to claim a ground for a retrial under Article 451(1)4 through 7 of the Civil Procedure Act, the grounds for retrial should be presented along with the fact that the requirements under Article 451(2) of the Civil Procedure Act have been met, except for such grounds for retrial, and a lawsuit for retrial that asserts a ground for a retrial under Article 451(1)4 through 7 of the Civil Procedure Act is unlawful without satisfying such requirements, and such retrial is thus unlawful.

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