(영문) 서울중앙지방법원 2017.08.23 2017재나53

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(영문) 서울중앙지방법원 2017.08.23 2017재나53

계약금반환

Text

1. The lawsuit of this case shall be dismissed.

2. The costs of retrial shall be borne by the Plaintiff (Counterclaim Defendant, and Plaintiff for retrial).

Reasons

1. Following the conclusion of the judgment subject to a retrial is apparent or obvious in records in this court.

The plaintiff in the judgment of the first instance filed a counterclaim against the plaintiff corporation B, which sought the return of down payment, as the court 2014Gaso50465, and Eul filed a counterclaim against the plaintiff as the court 2014Gaso83, which is the court 2014Gaso83, and the above court dismissed the plaintiff's main claim on August 28, 2015, and declared the judgment citing the counterclaim claim of the plaintiff B.

B. As to the judgment subject to a retrial, the Plaintiff filed an appeal with this court (principal lawsuit), No. 2015Na50261, 2015Na50278 (Counterclaim), and the attorney-at-law took over the lawsuit by the bankruptcy trustee C following the bankruptcy of the Co., Ltd. on September 8, 2016. On September 8, 2016, the above court rendered a judgment subject to a retrial with the purport that the Plaintiff shall pay to the Defendant 10,120,000 won and its related interest to the Plaintiff from November 15, 2014 to April 22, 2016, and to pay 15% per annum from the next day to the date of full payment.

C. On December 29, 2016, the Supreme Court rendered a judgment dismissing the Plaintiff’s appeal on the grounds that the judgment of final appeal was final and conclusive as it became final and conclusive by the Supreme Court, which rendered a judgment dismissing the Plaintiff’s appeal on December 29, 2016.

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

A. The summary of the Plaintiff’s assertion: (a) the Defendant failed to prove that the contract was completed with respect to the cause of the counterclaim; (b) the Plaintiff asserted as to the defect of the object; (b) whether the contract was completely implemented; and (c) whether the subject matter of the contract was delivered to the Plaintiff; and (d) the judgment subject to a retrial was omitted by failing to exhaust all necessary deliberations; and therefore, (e) the judgment subject to a retrial is subject to a judgment under Article

참조조문

-민사소송법 제451조 제1항 제9호

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