Article 422(1)9 of the Civil Procedure Act provides that "when a judgment is omitted on important matters that may affect the judgment," the meaning of "when a judgment is omitted."

The phrase “when a judgment on important matters that may affect the judgment” under Article 422(1)9 of the Civil Procedure Act, which is applicable mutatis mutandis in Article 14 of the Administrative Litigation Act, refers to the time when a party does not indicate any judgment among the reasons for the judgment on those matters that may affect the judgment due to a specific attack and defense that have been submitted or invoked by the party in a lawsuit, and even if ex officio investigation is conducted, if the party does not assert it or does not seek any investigation, it does not constitute a deviation from the judgment, which is a ground for retrial

Article 14 of the Administrative Litigation Act, Article 422(1)9 of the Civil Procedure Act

Supreme Court Decision 78Da1027 Decided August 22, 1978, 80Nu208 Decided July 7, 1981

Plaintiff

Seoul High Court Decision 201Na1448 decided May 1, 201

Seoul High Court Decision 83No3 decided March 2, 1984

Seoul High Court Decision 82Gu51 delivered on July 13, 1982

The appeal is dismissed.

The costs of appeal shall be borne by the plaintiff for retrial.

The grounds of appeal are examined.

1. "When a party evades a judgment on important matters that may affect the judgment", one of the grounds for a retrial under Article 422 (1) 9 of the Civil Procedure Act, which is applicable mutatis mutandis under Article 14 of the Administrative Litigation Act, refers to the time when a party does not indicate a judgment among the grounds for the judgment on those matters that may affect the judgment by a specific means of attack and defense that have been submitted or invoked in a lawsuit, and even if ex officio investigation is conducted, if the party does not assert or does not seek an investigation, it does not constitute a ground for a retrial under this context even if it was omitted (see Supreme Court Decision 80Nu280, Jul. 7, 1981; 78Da1027, Aug. 22, 197

In light of the judgment of the court below and the records, it is clear that the above final judgment determined the illegality of receiving money and valuables, which are grounds for disciplinary action, and thus rejected the Plaintiff’s assertion and evidence. Therefore, there is no omission of judgment like the theory of lawsuit.

In addition, if it is assumed that there was a omission of judgment such as the theory of lawsuit, it would have been known that the plaintiff who received the above judgment was aware of the fact, and even though it could have been asserted in the final appeal (see the proviso of Article 422(1) of the Civil Procedure Act. This case is an administrative litigation case, and it is different from the civil lawsuit subject to the Act on Special Cases Concerning Promotion, etc. of Legal Proceedings). Thus, it is obvious in the record that there was no assertion in the final appeal against the above judgment, and it cannot be considered as a ground for retrial. In this regard, the conclusion of the court below

2. When the documents, etc. adopted as evidence under subparagraph 6 of the same paragraph were forged or altered, and when the false testimony under subparagraph 9 of the same paragraph were used as evidence when a confession was made or the submission of the method of attack and defense was obstructed due to the acts of another person under subparagraph 5 of the same paragraph, a retrial can be instituted only when the judgment of conviction or a fine for negligence was affirmed or the final judgment of conviction or a fine for negligence cannot be rendered for reasons other than lack of evidence is affirmed (see Article 2(2) of the same Act), and there is no evidence to agree with the fact that there was coercion like the theory of lawsuit, forgery or alteration of documents, or perjury of documents, or the final judgment cannot be made due to reasons other than lack of evidence, so the judgment of the court below in the same purport also cannot be adopted as legitimate grounds for retrial.

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

Justices Jeon Soo-hee (Presiding Justice)