(영문) 부산고등법원 2017.7.21. 선고 2017재누14 판결

The decision of retrial and the decision of the first instance shall be revoked. Each disposition rejecting information disclosure made on April 11, 2006 and June 6 of the same year by the chief of the National Institute of Scientific Investigation (hereinafter referred to as the "Defendants") by the defendant (hereinafter referred to as the "Defendants") and the chief of the National Institute of Scientific Investigation on April 18, 2006 and the chief of the National Institute of Scientific Investigation on June 16 of the same year shall be revoked.

Reasons

1. Determination of the original judgment

The following facts are clear in records:

A. On February 22, 1997, the Plaintiff was sentenced to life imprisonment by the Busan District Court for a crime of violation of the Act on the Punishment of Sexual Crimes and Protection, etc. of Victims thereof (hereinafter “Special Robbery Act”), etc. (special robbery, rape, etc.), and the judgment became final and conclusive by the Supreme Court on September 12, 199, and is currently under guard in the Cheongju prison.

B. The plaintiff asserts that it is unlawful for the defendants to refuse the plaintiff's request for disclosure or not respond to any request for disclosure even though the defendants retain and manage information such as the contents requested for appraisal in the above case, such as violation of the sexual breadth Act. The plaintiff's remaining chief of the defendant National Institute of Scientific Investigation to Busan District Court 2006 Guhap2368 (hereinafter referred to as "previous first instance court") (hereinafter referred to as "the remaining chief of the defendant South Korea") against the defendants. The plaintiff's remaining chief of the defendant National Institute of Scientific Investigation (hereinafter referred to as "the remaining chief of the defendant South Korea") decided to refuse to disclose each information made on April 11, 2006 and June 6 of the same year, and the defendant National Institute of Scientific Investigation (hereinafter referred to as "the head of the defendant Institute") sought revocation of the refusal disposition of disclosure on April 18, 2006 and June 16 of the same year, but the above court rejected the plaintiff's appeal by 207.27.

2. Determination as to the existence of a ground for retrial

A. The purport of the plaintiff's assertion

In light of the result of the information disclosure decision and the lawsuit related to the case related to the decision of July 19, 2010 by the director of the defendant South South South Part-Time District Court (U.S. District Court 2010Guhap4927, 2010Guhap5111), the defendants submitted to the court a false answer and brief even though they had information about the 2 and 3 information at the time of the judgment, and the previous judgment of the first instance court and the new trial decision was rendered. Thus, the judgment subject to a retrial has grounds for retrial under Article 451 (1) 6 of the

B. Determination

1) The grounds for a retrial under Article 451(1)6 of the Civil Procedure Act, which applies mutatis mutandis under Article 8(2) of the Administrative Litigation Act, is "when documents and other articles used as evidence of the judgment have been forged or altered." Thus, the response and preparatory documents of the defendants performer, which the plaintiff claims to be false, are not only documents used as evidence of the judgment, but also false. Thus, the grounds for retrial under Article 451(1)6 of the Civil Procedure Act cannot be deemed to exist in the judgment of retrial, and therefore, the lawsuit of this case is unlawful.

2) Even if examining the Plaintiff’s reply of the Defendants’ litigation performer and documentary evidence referred to in the briefs, pursuant to Article 451(2) of the Civil Procedure Act, the Plaintiff may file a lawsuit for retrial only when a judgment of conviction or a judgment of a fine for negligence becomes final and conclusive or a final and conclusive judgment of a final and conclusive judgment of a conviction or a fine for negligence cannot be rendered for reasons other than lack of evidence. As such, a person who asserts grounds for retrial under Article 451(1)4 through 7 of the same Act shall assert and prove that he/she meets the requirements under Article 451(2) of the same Act and satisfies the requirements, and without satisfying such requirements, only the grounds for retrial under each of the above subparagraphs are unlawful in itself.

The Plaintiff merely claims the existence of the grounds for retrial under Article 451(1)6 of the Civil Procedure Act, but did not assert and prove that it satisfies the requirements under Article 451(2). Thus, the instant lawsuit for retrial is unlawful, which appears to be one of the arguments.

[Plaintiff filed a lawsuit claiming damages against the Republic of Korea (U.S. District Court Decision 2013Da75782) on the ground that the Defendants’ litigation was filed in a false public document preparation and event but the prosecutor in charge did not take a non-prosecution disposition, etc., and in this case, the Defendant asserted that the withdrawal of the objection to recommend reconciliation was erroneous by the Defendants’ litigation performers. However, this cannot be viewed as a assertion as to the requirements of Article 451(2) of the Civil Procedure Act. Even if it is the assertion as to the requirements of Article 451(2) of the Civil Procedure Act, even if it is the assertion as to the requirements of Article 451(2) of the Civil Procedure Act, the content of the recommendation to compromise is that the Plaintiff renounced the claim and bears the costs of litigation, and it is difficult to view that the Defendant accepted the above recommendation to have found the error of the Defendants’ litigation performers or that there is no other evidence to deem otherwise.]

3) In addition, pursuant to Article 456(3) of the Civil Procedure Act, which applies mutatis mutandis under Article 8(2) of the Administrative Litigation Act, where five years have passed after the judgment became final and conclusive, the decision on the retrial of this case becomes final and conclusive on December 27, 2007, and the fact that the Plaintiff filed a lawsuit for retrial of this case on September 7, 2016, which was more than five years thereafter, is apparent in the record. As such, the Plaintiff’s lawsuit for retrial of this case is unlawful even in the case where a lawsuit for retrial of this case was instituted after the lapse of the period for filing the petition for retrial of this case. Article 456(4) of the Civil Procedure Act provides that the period under paragraph (3) shall be calculated from the date on which the ground for retrial occurred, although the grounds alleged by the Plaintiff do not constitute grounds for retrial falling under any subparagraph of Article 4

3. Conclusion

Therefore, since the lawsuit of this case is unlawful, it is decided to dismiss it as per Disposition.