Whether there is a ground for retrial under Article 451(1)1 of the Civil Procedure Act on the ground that a judgment subject to a retrial was not rendered by a collegiate body of not less than two-thirds of all Justices, where it is apparent that the judgment does not constitute a change in the previous opinion of the Supreme Court (negative)

Article 451(1)1 of the Civil Procedure Act; Article 7(1)3 of the Court Organization Act

Supreme Court Decision 200Da148 Delivered on May 12, 2000, Supreme Court Decision 2004Da5666 Delivered on January 28, 2005

Plaintiff (Law Firm Rate, Attorney Lee Young-soo et al., Counsel for plaintiff-appellant)

The Director of the Pacific District Office

Supreme Court Decision 2013Du13181 Decided October 24, 2013

The request for retrial shall be dismissed. The costs of retrial shall be borne by the plaintiff (Plaintiff).

The grounds for retrial shall be determined.

The gist of the grounds for the request for retrial of this case is that the judgment subject to review is inconsistent with the previous Supreme Court decisions, and thus, the Supreme Court did not take part in a collegiate body of not less than 2/3 of all Justices although it constitutes a case where the previous opinion was modified. Thus, there is a ground for retrial under Article 451(1)1 of the Civil Procedure Act (when the judgment court was not constituted under the law).

However, the judgment subject to a retrial is deemed to constitute a ground for retrial under Article 4 (1) 1 of the Civil Procedure Act, since the case subject to a retrial constitutes a ground for retrial under the provision of Article 4 of the Act on Special Cases Concerning the Procedure for Appeal. In so doing, the judgment of the court below is deemed to have no effect on the judgment by interpreting the Enforcement Decree of the Corporate Tax Act in conflict with the Supreme Court precedents, and even in light of the record, it is apparent that the judgment subject to a retrial does not constitute a case where the previous opinion of the Supreme Court is changed, and therefore, the judgment did not constitute a case where the judgment subject to a retrial was not conducted by a two-thirds or more collegiate panel of all Justices of the Supreme Court, and it cannot be deemed that there exists a ground for retrial under Article 451 (1) 1 of the Civil Procedure Act (see, e.g., Supreme Court Decisions 200Da148

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

Justices Kim Shin (Presiding Justice)