Where the rejection of the request for examination of witness is based on the reason for challenge, the method of vindication for such reason.

If it is evident that there is an obvious cause of challenge in the records of the case on the merits, such as the time when the request for examination of witness is dismissed as a fact of challenge, the applicant for challenge need not vindicate the fact differently.

Articles 40 and 41 of the Civil Procedure Act

Appellant 1 et al.

Seoul High Court Order 78Ra13 dated July 31, 1978

The original decision is reversed and the case is remanded to the Seoul High Court.

According to the reasoning of the decision of the court of first instance maintained by the court below, the court of first instance decided to dismiss the motion for challenge under Articles 40(2) and 41(1) of the Civil Procedure Act on the ground that the applicant (re-appellant) did not submit a written vindication within three days from the date on which the motion for challenge was filed. According to the records, it is evident that the motion for challenge was unfairly dismissed by the court of first instance where the applicant applied for examination of witness in the lawsuit on the merits.

If the cause of the challenge is obvious on the records of the case on the merits, such as the rejection of the request for examination of witness, the challenge applicant does not need to vindicate the facts differently. Accordingly, it is reasonable to interpret that the rejection of the request for examination of witness cannot be made on the ground of the failure to submit a written explanation within the specified period under Article 40 (2) of the Civil Procedure Act, even if the other method of explanation is not submitted, and it is clear that the rejection of the request for examination of witness is the ground for the challenge. Accordingly, the first instance court, which received the request for examination of witness, did not submit any other method of vindication as to the above reason for challenge, has rejected the request for examination of witness pursuant to Article 41 (1) of the same Act on the ground that the above first instance court, which received the request, did not submit any other method of vindication as to the above reason for challenge, and therefore, the original decision that maintained

Therefore, the case shall be remanded to the Seoul High Court, which is the lower court, to reverse the original decision and to render a new decision. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Young-young (Presiding Justice)