Whether it constitutes a trial subject to retrial in the previous trial as provided in Article 37 subparagraph 5 of the Civil Procedure Act

The previous trial as stipulated in Article 37 subparagraph 5 of the Civil Procedure Act refers to a lower court's judgment on the objection case, and it does not fall under the final judgment which is the subject of the new trial in the new trial case. Thus, the judge involved in the new trial cannot be seen as a ground for exclusion even if he participates in the new trial case

Article 37 subparag. 5 of the Civil Procedure Act

Supreme Court Decision 79Da77 delivered on July 6, 1978 delivered on May 11, 1971

Appellant 1 et al.

Seoul High Court Order 87Ka347 Dated May 28, 1987

The reappeal is dismissed.

The grounds of reappeal are examined.

Article 37 subparagraph 5 of the Civil Procedure Act refers to a lower court's judgment in a case of objection, which is the subject of which a new trial becomes final and conclusive in a case of appeal, and therefore, a judge involved in a new trial cannot be viewed as a ground for exclusion of the judgment in a case of appeal (see, e.g., Supreme Court Decisions 71Da27, May 11, 1971; 78Ma147, Jul. 6, 1978; 79Da77, Nov. 27, 1979).

In the same purport, the judgment of the court below dismissing the motion for exclusion of this case is just, and it is not acceptable to criticize the original decision due to the opposing opinion, and it is so decided as per Disposition by the assent of all participating Justices.

Justices Lee B-soo (Presiding Justice)