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1. The decision subject to review shall be revoked.
2. The defendant's appeal is dismissed;
3. Lawsuits before and after the retrial; and
Reasons
1. On December 15, 2011, the Plaintiff filed a lawsuit against the Defendant seeking reimbursement of KRW 20 million and damages for delay thereof, and the lower court rendered a judgment in favor of the Plaintiff on December 15, 201 (No. 2010 Ghana Branch Office 2010). Accordingly, at the appellate court that filed an appeal by the Defendant on August 14, 2012, the lower court revoked the first instance judgment and rendered a judgment dismissing the Plaintiff’s claim (No. 2012Na966), and the Plaintiff filed a second appeal, but the final appeal was dismissed on November 29, 2012 (Supreme Court Decision 201Da78658). It is apparent in the record that the final judgment subject to a retrial becomes final and conclusive (No. 2012Da78658).
2. Determination as to the existence of a ground for retrial
A. Fact 1) The judgment of the court of first instance rendered a judgment in favor of the Plaintiff on the grounds that there is no evidence to acknowledge that the Defendant paid the entire amount of the fraternity to the Plaintiff. 2) The Defendant appealed from this judgment on July 3, 2012. The Defendant’s witness C appeared at the third day for pleading of the case subject to retrial and testified to the effect that “the Plaintiff would take an oath as a witness and receive the fraternity from the Defendant” (hereinafter “the testimony of this case”). The judgment subject to retrial was made on the grounds that “The Defendant may acknowledge the fact that the Plaintiff paid the entire amount of the fraternity to the Plaintiff according to the purport of testimony and oral argument by the witness C of the party trial,” and that “The court of first instance revoked the judgment and rendered a judgment dismissing the Plaintiff’s claim.”
3) On July 14, 2016, which became final and conclusive after the judgment subject to a retrial, C appeared as a witness of the Plaintiff’s claim for fraternity payment against the Defendant in the case subject to a retrial of 2012Na96 of the said court at the court around 14:00 on July 3, 2012, around 14:00, the Seoul Central District Court (2015Gohap7164).
C In fact, the testimony of this case does not appear to have been directly observed by the Plaintiff from the Defendant.