Whether grounds for retrial constitute grounds for appeal of right

Under Article 11 of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings, an appeal may be filed only on the ground that there is a ground falling under Article 11 (1) above, and the judgment of the court below that there was an error of misunderstanding of the grounds for a retrial such as the theory of lawsuit (Article 422 (1) 5 of the Civil Procedure Act) does not fall under any of the above Article 11 (1) and it does not constitute a legitimate ground for appeal

Article 11(1) of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings, Article 422 of the Civil Procedure Act

Supreme Court Decision 81Da1069, 81Meu695, April 27, 1982 (principal suit) Decided 81Da1070, 81Meu696, April 27, 1982 (Counterclaim)

Plaintiff (Reexamination Plaintiff)

Defendant (Re-Defendant) 1 and 3 others

Daegu High Court Decision 82Na337 delivered on February 1, 1983

The appeal is dismissed.

The costs of appeal are assessed against the plaintiff.

We examine the grounds of appeal.

Under Article 11 of the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings, an appeal may be filed only on the ground that there is a ground falling under the above Article 11 (1). Therefore, the ground that there was an error of misunderstanding the grounds for a retrial, such as the theory of lawsuit, does not fall under any of the above Article 11 (1) and it does not constitute a legitimate ground for appeal.

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

Justices O Sung-sung(Presiding Justice)