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(영문) 대법원 1974. 8. 30. 선고 74다795 판결
[근저당권설정등기말소등][공1974.11.1.(499),8047]
Main Issues

Whether the appellate court rendered a judgment on the merits and filed a lawsuit for retrial against the judgment of the first instance is legitimate

Summary of Judgment

According to the provisions of Article 422(3) of the Civil Procedure Act, when an appellate court rendered a judgment on the merits of a case, it is impossible to bring a lawsuit on the judgment of the court of first instance against the judgment of the court of first instance, and thus, it cannot be a subject of a trial of any court of first instance. Therefore, the review against the judgment of the court of first instance filed in

[Reference Provisions]

Article 422(3) of the Civil Procedure Act, Article 31(1)

Plaintiff (Re-Appellant)-Appellant

Plaintiff

Defendant (Re-Defendant)-Appellee

Defendant

original decision

Seoul High Court Decision 74Na209 delivered on April 19, 1974

Text

The appeal is dismissed.

The costs of appeal shall be borne by the plaintiff.

Reasons

The plaintiff's grounds of appeal are examined.

According to the records and the reasoning of the original judgment, with respect to the plaintiff's claim for cancellation of the establishment registration of a new trial against the defendant, the court rendered a judgment on July 8, 1971 against the plaintiff as to the plaintiff's claim for cancellation of the establishment registration of a new trial, and the court rendered a judgment on dismissal of the plaintiff's complaint, which is the Seoul High Court 71Na1852 decided on May 19, 1972 due to the plaintiff's appeal, which became final and conclusive by the judgment of the Supreme Court, and this judgment was clearly stated in the judgment of the first instance in the above judgment and sought a new trial ( obvious by the chief of the new trial), and the judgment of the first instance court cannot be the subject of a new trial, and it cannot be the subject of a new trial, which court's judgment of the first instance cannot be the subject of a new trial, and it is justified in the judgment of the appellate court's dismissal of the plaintiff's lawsuit against the plaintiff's appeal to the court of first instance, and it cannot be justified in the judgment of the first instance court's judgment as to be transferred to the court.

Therefore, the appeal shall be dismissed and the costs of appeal shall be assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Red Man-Man (Presiding Justice) No. 544, Dec. 1, 200

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