[1] Where a judge who participated in a trial subject to a retrial has participated in the trial of the relevant case, whether it constitutes "when a judge who is unable to participate in the trial under the law" under Article 422 (1) 2 of the Civil Procedure Act (negative)

[2] Whether a court may reject a lawsuit for retrial by examining whether there exists a ground for retrial on the sole basis of a statement in the petition for retrial without reviewing the records of the case on the merits subject to retrial (affirmative)

[1] The original judgment subject to a retrial cannot be deemed to fall under "the preceding trial under Article 37 (5) of the Civil Procedure Act". Therefore, even if a judge involved in the trial subject to a retrial participated in the trial of the relevant case, it cannot be deemed to fall under "when a judge is unable to participate in the trial under the law" under Article 422 (1) 2 of the Civil Procedure Act.

[2] A lawsuit for retrial is a lawsuit seeking the revocation of a cause for retrial under Article 422 of the Civil Procedure Act and the re-adjudication of a case on the merits of a new case which has been concluded by a final judgment, on the ground that there exists a cause for retrial as to a final judgment, and the court did not review the records of the case on the merits of a new trial, but did not examine whether there is a cause for retrial, and if the existence of a cause for retrial is not recognized, the lawsuit for retrial may be rejected, and even if a judgment subject to retrial was dismissed without examining the records of the case on the merits of a new trial without examining the records of the case on the merits of a new trial, it shall not be deemed as "when a judge

[1] Article 37 subparag. 5 and Article 422(1)2 of the Civil Procedure Act / [2] Article 422(1)4 of the Civil Procedure Act

[1] Supreme Court Decision 79Da77 decided Nov. 27, 1979 (Gong1980, 12410) Supreme Court Decision 86Nu631 decided Dec. 23, 1986 (Gong1987, 259) decided May 10, 198 (Gong1988, 948)

The Housing Reconstruction Association in the Area of the 1st degree public apartment;

Defendant

Supreme Court Decision 99Ja647 delivered on December 21, 1999

The request for retrial shall be dismissed. Litigation costs for retrial shall be borne by the defendant (Plaintiff for retrial).

The grounds for retrial of the defendant (hereinafter referred to as "defendants") are examined.

The gist of the Defendant’s assertion as a ground for retrial is that (1) one of the Justices who participated in the judgment subject to review of this case is involved in the Supreme Court Decision 9Da28630 Decided that is subject to review of this case, which constitutes a ground for retrial under Article 422(1)2 of the Civil Procedure Act. (2) The judgment subject to review only the chief of the retrial office without reviewing the records on the merits of the case subject to review, and dismissed the Defendant’s request for retrial. This is not only in violation of the procedure prescribed in the Civil Procedure Act, but also constitutes a ground for retrial under Article 422(1)4 of the Civil Procedure Act as it abused the power of

First of all, the original decision, which is subject to a new trial, cannot be deemed to fall under a "pre-trial trial" under Article 37 (5) of the Civil Procedure Act. Therefore, even if a judge involved in a new trial, even if he participated in the trial of the case, it cannot be deemed to fall under a "when a judge is unable to participate in the trial under the law" under Article 422 (1) 2 of the Civil Procedure Act, so the argument in this regard is without merit.

Then, (2) We examine the point of view, since a lawsuit for a retrial is filed to seek a re-adjudication on the merits of a case subject to a retrial, claiming that there exists a cause for a retrial under Article 422 of the Civil Procedure Act regarding a final judgment, and that there is a cause for a retrial as to the final judgment, the court may reject the lawsuit for a retrial if there is no ground for a retrial by examining the records of the principal case subject to a retrial without examining the records of the case subject to a retrial, and even if the existence of a cause for a retrial is not recognized by examining the records of the principal case subject to a retrial, even if the judgment of this case dismissed the defendant's request without examining the records of the principal case subject to a retrial, it cannot be deemed to constitute "when the judge who participated in the trial commits a crime related to duties" under Article 422 (1) 4 of the Civil Procedure Act, and there is no reason to assert this point. Moreover, there is no evidence on the existence

Therefore, the retrial of this case is dismissed and the costs of the retrial are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Cho Cho-Un (Presiding Justice)