A case holding that there are grounds for retrial under Article 422(1)8 of the Civil Procedure Act

If the judgment of the appellate court's failure to commit fraud against the defendant, which is the evidence of the plaintiff's claim, is reversed and remanded by the Supreme Court, and again, the judgment of innocence is rendered by the original court, and this judgment becomes final and conclusive, this constitutes the time when the criminal judgment, which is the basis of

Article 422 of the Civil Procedure Act

Plaintiff

Defendant

Daejeon District Court of the first instance (Supreme Court Decision 66Ga1673)

1. Of the judgment of April 24, 1969, the part ordering the plaintiff (defendant) to pay in excess of the amount equivalent to 21,250 won per annum from June 8, 1966 to the full payment system shall be revoked.

2. The part ordering the payment of the above paragraph (1) out of the original judgment is revoked and the plaintiff's claim concerning this part is dismissed.

3. Of the costs of lawsuit, the part relating to the principal lawsuit shall be 1/10 at the expense of the defendant (the plaintiff for retrial), and the remainder shall be borne by the plaintiff (the defendant for retrial) at the expense of the defendant for retrial.

The main sentence is as set forth in the latter part of paragraphs (1) and (3).

The plaintiff (the defendant) shall pay to the plaintiff 50 million won with an amount of 300,000 won from July 15, 1966 to 10,000 won, from 10,000 won to 10,000 won, from June 13, 196 to 196 to 10,000 won, and from April 15, 196 to 196 to 10,000 won with an amount of 5 percent interest per annum.

The judgment that the lawsuit costs should be borne by the defendant and the declaration of provisional execution were sought.

The defendant (Plaintiff for Retrial) shall revoke the part against the defendant in the original judgment.

The plaintiff's claim is dismissed.

The court of first and second instances filed a judgment that all the costs of lawsuit should be borne by the plaintiff.

1. Existence of grounds for retrial

On April 24, 1969, "the defendant (the defendant)" was sentenced to the Supreme Court on July 15, 1966 for the amount of KRW 321,250 and KRW 300,000,00 for the plaintiff (the defendant) from July 15, 1966 for the amount of KRW 21,250 from June 8, 196 to each full amount, and the amount of KRW 5% per annum from June 8, 1966 for the amount of KRW 21,250. The defendant (the plaintiff) filed a final appeal but the final judgment became final and conclusive on the grounds that there is no dispute between the parties. The defendant (the defendant's retrial) received 300,000 won among the facts constituting the plaintiff (the plaintiff's ground for appeal, and there is no evidence of the court below's 15% per annum from July 15, 196 to 20, and there is no evidence of the defendant (the defendant's testimony).

However, among them, the above evidence No. 2 of the Daejeon District Court's criminal appeal No. 66No805 delivered on June 9, 1967 was convicted of attempted fraud against the defendant (the plaintiff for review). The above judgment was reversed and remanded by the Supreme Court by the appeal of the defendant (the plaintiff for review) and was tried again by the Daejeon District Court's criminal appeal division, and it is clear that the judgment of innocence was rendered on March 26, 197, and this judgment was made by the evidence No. 4-6, which is an official document No. 4 or 6.

Therefore, this constitutes grounds for retrial under Article 422(1)8 of the Civil Procedure Act when a criminal judgment, which served as the basis of the judgment, was changed by another trial following the judgment.

2. Judgment on the merits

The summary of the cause of the Plaintiff’s claim was that on June 28, 1966, the Plaintiff lent KRW 300,000 to the Defendant via Nonparty 2 (in cash substitute, KRW 150,000 per share of the bank name of Nonparty 3’s husband, and the check was approved by the holder presented to the bank on July 15, 1966). Thus, the Defendant did not repay the above loan, and thus, the Plaintiff claimed damages for delay after July 15, 1966 (the date the check was issued).

However, as shown in the above argument, the contents of Gap evidence 2, Eul evidence 11-2,5,11, and the part of testimony by non-party 1 of the court below witness shall not be easily believed in light of the contents of Eul evidence 2-3 (written statement), 5 (written statement of interrogation of suspect, part), 6 (written statement of suspect), 8 (written statement), 9 (written statement of statement), 10 (written statement), and 5 (written statement of public document) No. 4-5 (written judgment) without any dispute over each establishment.

Therefore, the plaintiff (the defendant)'s claim under the premise that the defendant (the plaintiff) lent 300,000 won on June 28, 1966 from the plaintiff (the defendant) to a cash or a check is without merit, and thus, it shall be dismissed. Thus, the part of the original judgment changing the conclusion is unfair.

4. Conclusion

Therefore, among the judgment in the previous suit, the part ordering the payment of 300,000 won and damages for delay at the rate of 5% per annum from July 15, 1966 to the date of full payment shall also be revoked, and the part against the defendant (re-appellant) on the above part of the original judgment shall also be revoked, and the plaintiff (defendant)'s claim on this part shall be dismissed. It is so decided as per Disposition by applying Article 425, 89, and 92 of the Civil Procedure Act to the bearing of litigation costs.

Judges Kim Young-han (Presiding Judge)