2015Redrid 52 Divorce

MinimumA (************ 2***********)))

Seoul Address

Busan place of service

reference domicile Gyeong-nam

ParkBB (*********** 2**********))

Busan Address

reference domicile Gyeong-nam

Busan Family Court Decision 2012Ra32016 decided June 18, 2014

March 25, 2016

April 22, 2016

1. The lawsuit of this case shall be dismissed.

2. The costs of retrial shall be borne by the defendant (the plaintiff for retrial).

Purport of claim and request for retrial

Purport of claim

Plaintiff (Defendant 1; hereinafter referred to as “Plaintiff”) and Defendant (Defendant 2; hereinafter referred to as “Defendant 2”) are divorced;

The defendant shall deliver to the plaintiff 20,000,000 won and to the plaintiff a written amendment of the purport and reason of the claim of this case.

D. The payment of 20% interest per annum from the following day to the date of full payment.

Purport of request for retrial

The original judgment is revoked.

1. Confirmation of the judgment subject to review

On November 28, 2012, the plaintiff filed a lawsuit against the plaintiff and the defendant Eul for divorce, etc. on the defendant's responsibility. On June 18, 2014, the above court ruled in favor of the plaintiff's claim for divorce and the defendant's claim for consolation money (10 million won and damages for delay thereof) that some of the plaintiff's claim for divorce and the defendant's claim for consolation money (10 million won and damages for delay) constituted grounds for divorce provided for in subparagraphs 3 and 6 of Article 840 of the Civil Act. The defendant filed a counterclaim (the Busan Family Court's judgment 2014240 (the plaintiff's counterclaim) and the plaintiff's counterclaim 20140 (the plaintiff's counterclaim and the plaintiff's counterclaim 813 (the plaintiff's counterclaim) and the above court dismissed the defendant's appeal as 2015 (the plaintiff's counterclaim 2015).

2. Determination on the existence of a ground for retrial

A. The defendant's assertion

The defendant asserts to the effect that there is a ground for retrial under Article 451(1)7 of the Civil Procedure Act in the judgment subject to a retrial (Supreme Court Decision 2012ddan32016 Decided Busan Family Court) since the defendant was disqualified by attending as a witness and making a false statement in the case of divorce 2014Da400 (principal lawsuit) and divorce 20142813 (Counterclaim) (Counterclaim), which is the above appellate court, the Busan Family Court, as the defendant, the defendant lost the defendant by attending as a witness and making a false statement.

B. Determination

Therefore, under Article 451(1)7 of the Civil Procedure Act, the above witness ParkCC, who was present and testified as a witness at the above appellate court, not the court of first instance, which is a judgment subject to a retrial, may bring an action for retrial on the final judgment finalized at the time when the witness, appraiser, interpreter’s false statement or false statement by the party or legal representative by the party’s questioning becomes evidence of the judgment. According to Article 451(2) of the same Act, a lawsuit for retrial may be brought only when the judgment of conviction or the judgment imposing a fine for negligence becomes final and conclusive or it is impossible to render a final and conclusive judgment of conviction or the judgment imposing a fine for negligence for reasons other than lack of evidence. Meanwhile, a lawsuit for retrial cannot be brought only when the grounds for retrial provided for in Article 451(1)4 through 7 of the Civil Procedure Act do not meet the requirements of Article 451(2) of the same Act.

Since the lawsuit for retrial itself is illegal, it should be dismissed without examining whether or not there exists a ground for retrial itself, and the facts constituting legitimate requirements under paragraph 2 of the above Article must be proved by the party who filed the lawsuit for review (see Supreme Court Decision 88Meu29658 delivered on October 24, 1989, etc.).

Ultimately, there is no evidence to prove that the judgment of conviction or imposition of negligence was final and conclusive on the perjury that a witness made a false statement, or that it constitutes a case where a final and conclusive judgment of conviction or imposition of an administrative fine cannot be made for reasons other than lack of evidence, and thus, the lawsuit of re-deliberation in this case is unlawful because it does not meet the requirements of Article 451(2) of the Civil Procedure Act.

3. Conclusion

Therefore, the defendant's lawsuit of this case is unlawful and thus it is decided as per Disposition by the assent of all participating Justices.

Judges Kim Jong-soo