The original judgment, which is the object of a retrial in a case of retrial, cannot be deemed to fall under the “previous trial” under Article 37 subparag. 5 of the Civil Procedure Act, and thus, the judge involved in the original judgment cannot be deemed to fall under the grounds for exclusion or the grounds for retrial on the ground that he/she participated in the trial of

Since the original judgment, which is subject to retrial in a case of retrial, cannot be seen as falling under "the preceding judgment", a judge involved in such original judgment shall not be deemed to fall under the grounds for exclusion or retrial on the ground that the judge involved in such original judgment participated in the trial.

Article 37 subparag. 5 of the Civil Procedure Act, Article 422(1)2 of the Civil Procedure Act

Supreme Court Decision 67Da212 Decided March 28, 1967

Korea

Defendant (Reexamination Plaintiff) 1 and two others

Supreme Court Decision 70Da2773 Decided January 29, 1971

This case is dismissed.

The litigation costs for retrial shall be borne by the defendant (Plaintiffs for retrial).

(1) As to the first ground for retrial by Defendant (Plaintiffs)

The scope of res judicata of a final and conclusive judgment is, in principle, limited to the parties to a lawsuit, and in a lawsuit instituted by an obligee on behalf of an obligor to a third party by exercising the obligor's right, the obligee exercises his/her own right in his/her own name in order to preserve his/her claim, and thus, it cannot affect the final and conclusive judgment of the lawsuit. Since the previous precedents (see Supreme Court Decision 67Da212, Mar. 28, 1967; Supreme Court Decision 67Da212, Apr. 28, 196), it is justifiable that the original judgment that became the object of the lawsuit in this case was decided to the same purport, and that there is no omission of judgment like the theory in the original judgment, that is

(2) As to the grounds for retrial No. 2

Article 37 subparag. 5 of the Civil Procedure Act, which provides for the grounds for exclusion of a judge, refers to a lower judgment of the appeal case. Although a judge's participation in the trial was unreasonable and appealed, it would be another participation in the appellate court's appellate court's judgment which appeals to the appeal case. Thus, in such a case, it should be defined as grounds for exclusion. However, the original judgment, which is subject to a retrial in the case of an application for retrial, cannot be deemed as a "second trial" of Article 37 subparag. 5 of the Civil Procedure Act. Accordingly, even if a judge participating in the original trial which is subject to the retrial, it cannot be deemed as grounds for exclusion, or it cannot be deemed as a ground for retrial of Article 422 subparag. 2 of the Civil Procedure Act. Thus, even if a judge of this case participated in the trial of the retrial case, even though he participated in the judgment, it cannot be said that it constitutes grounds for retrial under Article 422 subparag. 2 of the Civil Procedure Act or ex officio.

Therefore, it is so decided as per Disposition with the assent of all participating judges.

The judges of the Supreme Court (Presiding Judge) shall have the right to ask questions to the public on the Red Round Puls