The meaning of the omission of judgment on the important matters that may affect the judgment under Article 422 (1) 9 of the Civil Procedure Act

A. Article 422 (1) 9 of the Civil Procedure Act refers to a case where a judgment is not indicated among the reasons for the judgment concerning an attack and defense method submitted by a party in a lawsuit, which has an influence on the conclusion of the judgment, and as long as such judgment was rendered, the grounds for rejecting the allegation alleged in the grounds for appeal cannot be individually explained, or even if there were errors in the contents of the judgment, it cannot be deemed as a omission of judgment as referred to in the above Article of the Act.

Article 422(1) of the Civil Procedure Act

Supreme Court Decision 80Da49 Delivered on June 9, 1981, 86Da38 Delivered on April 14, 1987

Rocellccckn Patent Attorney Nam-sik et al., Counsel for the defendant-appellant-appellant

The Commissioner of the Korean Intellectual Property Office

Supreme Court Decision 84Hu28 Decided July 21, 1987

The retrial lawsuit is dismissed.

Costs of litigation for retrial shall be borne by an applicant for retrial.

1. Determination on grounds of appeal Nos. 1, 2, and 3

Article 422 (1) 9 of the Civil Procedure Act provides that "when a judgment on important matters that may affect the judgment has been omitted" refers to an attack and defense method submitted by the parties to a lawsuit and that has an influence on the conclusion of the judgment among the grounds for the judgment. As long as the judgment was rendered, the grounds for rejecting the argument that was presented in the grounds for appeal cannot be individually explained or even if there were errors in the judgment, it shall not be deemed a deviation from the judgment under the above provision of the Act (see, e.g., Supreme Court Decision 80Da49, Jun. 9, 1981; Supreme Court Decision 86Da38, Apr. 14, 1987). If we examine the grounds for the judgment subject to the judgment in this case compared to the grounds for appeal, the judgment subject to the judgment in this case is clearly stated in all the grounds for appeal, and thus, it cannot be said that there is an error of law by omitting the judgment on important matters that may affect the judgment, and therefore, it is groundless to deem

2. Judgment on the fourth ground for retrial

The issue is that, after the lapse of the period in which the appellate brief of the decision subject to a retrial was not timely filed, a patent was granted in Japan in spite of the cited invention, and this constitutes a new evidence that can recognize the newness and inventive step of the original invention, and thus, a new judgment is revoked and another judgment is requested. However, even if new evidence that can recognize that the invention falls under the requirements for a patent, this does not fall under any of the subparagraphs of Article 422(1) of the Civil Procedure Act, and thus,

3. Therefore, the lawsuit of this case is without merit, and the costs of the lawsuit are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee B-soo (Presiding Justice)