Plaintiff (Re-Appellant) 1 et al., a party to the lawsuit of the deceased non-party 1 (Attorney Choi So-young, Counsel for the plaintiff-appellant)

Republic of Korea (Government Law Firm Corporation, Attorney Seo-young, Counsel for defendant-appellant)

October 16, 2018

Seoul High Court Decision 68Na24 delivered on December 6, 1989

1. The part concerning the deceased non-party 1 (date of birth 1 omitted) among the judgment subject to a retrial is revoked, and the defendant (defendant) who corresponds to the revoked part is dismissed.

2. The costs of retrial shall be borne by the defendant.

1. Claim: The defendant (the defendant, hereinafter referred to as the "defendant") is entitled to have the deceased's non-party 1 (the date of birth 1 omitted; hereinafter referred to as the "the deceased's date of birth 1 omitted) 1.3 4 knbb and 5 kbbbbb, and the deceased's registration procedure for the transfer of ownership on the ground of the completion of redemption 10 m2 (hereinafter referred to as the "land in this case") in Yeongdeungpo-gu Seoul Metropolitan Government

2. Purport of appeal and purport of the request for retrial in the previous retrial case: The part on the deceased in the previous judgment subject to retrial (Seoul High Court Decision 67Na1001 delivered on February 9, 1968) and the first instance judgment (Seoul Civil and Civil District Court Decision 64Da5133 delivered on March 9, 1967) shall be revoked, and the claim of the deceased shall be dismissed.

3. Purport of the request for retrial of this case: Disposition;

1. Facts of recognition;

A. Farmland distribution, etc. for the instant land ○○ Dong-dong

1) The Yeongdeungpo-gu Seoul Metropolitan Government (No. 2 omitted) land of approximately 300,000 square meters (hereinafter “instant land”). However, during the Japanese occupation period, the registration was completed from around 1942 to around 1943 under the name of the State (U.S.). Nevertheless, the land of this case was not used as military facilities or military land, and its original farmer continued to cultivate it as farmland. The Farmland Reform Act was revised and promulgated on March 10, 1950, and the farmland distribution procedure was implemented against the land of this case, and some payment was made from May 1950 to 1952 to the land of this case. However, the Ministry of National Defense had not claimed that the land of this case was owned by the State and the land of this case was not redeemed.

2) As part of the industry promotion and refugee settlement relief project on September 1, 1961, the Defendant transferred the right to manage the instant land from the Ministry of National Defense to the Ministry of National Defense, and had Seoul Government create the △△△△△△ industrial complex. Seoul started the new construction of 1,200 public houses to remove the market standard around August 1961, and the new construction of 1,200 simple houses, 1,100 simple houses, from August 1, 1962 to September 1962, the completion and occupation of the new construction was completed, and in addition, the construction of ○○, ○○, △△△△, and individual housing site was created.

B. Litigation filing and winning of the deceased

The Deceased filed a lawsuit against the Defendant seeking the implementation of the procedure for the registration of ownership transfer on the instant land as Seoul Civil District Court No. 64A5133. Accordingly, the Seoul Civil District Court rendered a judgment citing the claim of the Deceased (hereinafter “the first instance judgment”), Seoul High Court (67Na1001), which was the appellate court, rendered a judgment dismissing the Defendant’s appeal on February 9, 1968 (hereinafter “the appellate judgment of this case”), and the Supreme Court (68Da804), dismissed the Defendant’s appeal on July 16, 1968.

(c) Investigations and prosecutions by prosecutors against farmers, etc. filing civil lawsuits;

1) On March 23, 1968, the Seoul District Prosecutors' Office became aware of the manipulation of farmland distribution documents, and detained Nonparty 6 of the Ministry of Agriculture and Forestry who testified that farmland was distributed in related cases, such as the first instance court of this case, and started an investigation into public officials in charge of farmland in each agency, while detained Nonparty 6 of the Ministry of Agriculture and Forestry under suspicion of perjury.

2) In addition, the Seoul District Prosecutors' Office expanded the investigation by investigating Nonparty 7, Nonparty 5, and Nonparty 4, who were already detained as a fraud and perjury case on September 20, 1968, the farmland fraternity of the former Yeongdeungpo-gu Office, Nonparty 3, Nonparty 8, Nonparty 9 in charge of farmland located in the Si-Gun, Nonparty 10, etc. under suspicion of perjury.

3) From March 18, 1968 to July 1970, the Seoul District Prosecutors’ Office continued to investigate farmers who filed a civil lawsuit against the defendant and public officials who given testimony corresponding to their arguments. In the process, 104 persons arrested during the process, who withdrawn a civil lawsuit before filing a request for detention warrant, were detained, and 39 persons who were released after the withdrawal of a civil lawsuit or waiver of their rights, were detained, and 41 persons who were finally prosecuted (Seoul Criminal District Court Decision 68Da42609, 69Da13577, 69Da29382, 70 high-2, 70 high-ranking29, 70529, 70743 (each consolidation)).

4) The above criminal trial was completed on March 13, 1984, following the appellate court (Seoul High Court 74No5135 case), the final appeal (Supreme Court 79Do550 case), the final appeal (Supreme Court 79Do560, the Seoul High Court 83No459, the same court 83No699, and the same court 83No6971 case). As for the above 41 persons, the decision to dismiss the prosecution due to death, the decision to dismiss the prosecution against one of the above 41 persons, the decision to dismiss the prosecution against two of the two persons, and the judgment to dismiss the prosecution against two of the remaining 26 persons was pronounced guilty and finally determined.

D. Re-adjudication of civil final and conclusive judgment (instant judgment subject to a retrial)

1) In 1968 and 1970, the Defendant filed a petition for a new trial on the civil judgment that has already been invalidated while investigating the persons involved in the case of the claim for ownership transfer registration of the land in the instant ○○ Dong-dong in 1968.

2) The case claimed by the Defendant was not in progress during the criminal trial against the persons involved, but resumed in 1984, after the criminal trial was completed.

3) The Defendant also filed a petition for a new trial with Seoul High Court Decision 68No. 24, and the deceased died on March 8, 1977, the deceased Nonparty 11 (Death on August 31, 2012) and the Plaintiff (hereinafter “Plaintiff”) who is his/her child, taken over the lawsuit. The Seoul High Court rendered a judgment accepting the Defendant’s request for a new trial on December 6, 1989 (hereinafter “instant judgment subject to new trial”), namely, the judgment accepting the Defendant’s request on December 6, 1989 (hereinafter “instant judgment subject to new trial”), and the Plaintiffs filed a petition for a final appeal with the Supreme Court Decision 90Meu478, the Supreme Court dismissed the petition for a final appeal on June 26, 1990.

4) The grounds for retrial regarding the instant judgment subject to a retrial are as follows:

The judgment of the appellate court of this case adopted the statement of each official document called "case concerning the management of military land" and "case of the investigation of the distribution status of military land" and the testimony of the non-party 4, non-party 10, and non-party 12 as evidence recognizing the cause of the claim.

○ First, Nonparty 4 was found guilty of testimony regarding the distribution of farmland on the land located in the ○○dong-dong-dong-dong, and thus convicted. Therefore, the part on perjury by Nonparty 4, etc., which was convicted, constitutes grounds for retrial under Article 422(1)7 of the former Civil Procedure Act (wholly amended by Act No. 6626, Jan. 26, 2002; hereinafter “former Civil Procedure Act”), namely, when the false statement by a witness, appraiser, interpreter, or sworn party or legal representative becomes evidence of the judgment.

In addition, in light of the fact that Nonparty 9 and Nonparty 3 and Nonparty 8, who prepared a "case on the management of military land" and prepared a "case on the investigation of distribution of farmland to military land," were sentenced to a non-prosecution decision on the ground of the expiration of the statute of limitations against the preparation of each false official document by Nonparty 3 and Nonparty 8, but the non-party 7 and Nonparty 13, who filed a lawsuit on the registration of ownership transfer while distributed the land of this case, were prosecuted against the non-party 10, 4, and 3 who testified in the relevant civil procedure, and they were convicted of all the remaining defendants except the non-party 14, 10, and 15 [including the date of birth (the deceased and the name of the deceased) who were found guilty as follows and the deceased non-party 2 also included the date of non-party 9, the non-party 3, and the deceased non-party 2, who did not have completed the statute of limitations as evidence of the former Civil Procedure Act.”

E. The truth-finding findings by the Korean Film Commission for truth and reconciliation

1) On May 26, 2006, the number of 155 Defendants, their bereaved family members, etc., who were convicted, applied for the truth-finding and restoration of their honor to the Former History Mediation Committee for Truth and Reconciliation (hereinafter “Reconciliation Committee”).

2) On July 8, 2008, the past reorganization committee ordered the instant case to be “the suspicion of fraud in the 00 farmland distribution lawsuit,” and issued a truth-finding decision stating that “the State interventions in the civil lawsuit to achieve administrative objectives, thereby abusing the public authority,” and “at that time, it is difficult to hold the farmers who raised the civil lawsuit liable for fraud in the lawsuit, and it constitutes grounds for retrial under the Criminal Procedure Act to force the waiver of rights and the perjury illegally by collectively unlawful acts by the farmers.”

(f) The judgment of a criminal retrial against a conviction (guilty verdict)

1) As above, the Defendant or his bereaved family member who was convicted of fraud or perjury filed a petition for a retrial against 23 persons among the Defendants, on the grounds of the decision of the Seoul Central District Court 2009 Inventory 3,6,9 (each combination), etc. on November 29, 201, on which the judgment of innocence was rendered on November 29, 201, and the said judgment became final and conclusive on December 7, 2011 on the grounds that the prosecutor did not appeal. However, the request for retrial was not accepted by Nonparty 4 and Nonparty 13’s bereaved family member. The reason for conviction against Nonparty 4 and Nonparty 13 is not the first instance judgment that was rendered on February 18, 1974, but the appellate court is not the judgment that was rendered on February 18, 1974, and thus, it was unlawful to request a retrial as a judgment subject to a retrial by the first instance court.

Accordingly, Nonparty 13’s bereaved family members were Seoul Central District Court 2010No25, and Nonparty 4’s bereaved family members filed a request for re-adjudication with the same court 2010 No.26, and received a judgment of innocence on January 27, 2012. This case also became final and conclusive on February 4, 2012 due to the prosecutor’s failure to file an appeal.

2) In addition, the non-party 16 (the deceased person and his/her name) who was convicted of perjury filed a request for a new trial as Seoul Central District Court 201 Inventory 27, and was rendered a judgment of innocence on January 8, 2014. The prosecutor appealed against and filed an appeal by the prosecutor on October 24, 2014, but the prosecutor’s appeal was dismissed on October 24, 2014, and the judgment became final and conclusive on November 1, 2014.

3) Nonparty 3, who was convicted of perjury, requested a retrial to Seoul Central District Court 2012 Inventory 25, and was rendered a judgment of innocence on February 17, 2016, and the said judgment became final and conclusive on February 25, 2016.

4) As to the deceased non-party 2 who was found guilty of fraud, the prosecutor filed a petition for review with Seoul Central District Court 2017 Inventory 44, and the judgment of innocence was rendered on February 8, 2018, and the said judgment became final and conclusive on February 20, 2018.

G. The plaintiffs' prior petition for retrial

On June 17, 2013, the Plaintiffs filed a lawsuit seeking revocation of the instant judgment subject to retrial on the grounds that there was grounds for retrial stipulated in Article 451(1)8 of the Civil Procedure Act (hereinafter “the instant judgment subject to retrial”). On May 2, 2014, the Plaintiffs known that Nonparty 4 was rendered a judgment of innocence at the latest around May 3, 2013, but the said judgment dismissed it on the grounds that Nonparty 30 days (30 days), which is the period for filing a petition for retrial as stipulated in Article 456(1) of the Civil Procedure Act, and that Nonparty 4 filed a lawsuit seeking revocation of the instant judgment subject to retrial, was dismissed on the grounds that there was a ground that there was a ground for retrial as stipulated in Article 451(1)8 of the Civil Procedure Act (hereinafter “the instant judgment subject to retrial”). Although the Plaintiffs were dissatisfied with the judgment, the appeal was dismissed on July 24, 2014.

H. The plaintiffs' request for retrial of this case

On July 14, 2018, the Plaintiffs filed a lawsuit seeking the revocation of the instant judgment subject to a retrial.

[Ground of Recognition] Facts without dispute, Gap evidence 1 to 16, Eul evidence 1 to 5 (including each number), the purport of the whole pleadings

2. Determination

A. Determination as to the existence of grounds for retrial and the expiration of the period for filing a retrial

1) Article 451(1)8 of the Civil Procedure Act provides for the grounds for retrial when the judgment was changed by a civil or criminal judgment, or any other judgment or administrative disposition, which forms the basis of the judgment, according to a different judgment or administrative disposition. Here, the term “based on the judgment” refers to a case where the judgment legally binding force or the contents of the judgment are likely to affect the fact-finding of the final judgment. Furthermore, insofar as the contents of the judgment became materials for fact-finding in the final and conclusive judgment and are likely to affect the fact-finding of the final and conclusive judgment, there are grounds for retrial, and the contents of the judgment are not limited to cases where the documents containing the judgment were submitted as evidence in the litigation procedure in which the final and conclusive judgment was rendered, and the contents of the document were adopted as evidentiary materials (see Supreme Court Decision 94Da20570, May 31, 1996, etc.).

According to the above facts, since the conviction against the deceased non-party 2, non-party 1, and non-party 3 (hereinafter "the deceased non-party 2, etc.") also became evidence for fact-finding in the judgment subject to a retrial, and the modification of each of the above conviction could affect the fact-finding of the judgment subject to a retrial of this case, it is reasonable to deem that the judgment of innocence was the basis for the judgment subject to a retrial of this case. Furthermore, since the judgment of innocence became final and conclusive as a result of criminal retrial, there are grounds for retrial stipulated in Article 451 (1) 8 of the Civil Procedure Act in the judgment subject to a retrial of this case. Furthermore, there was no evidence suggesting that the plaintiffs were aware of the result of the criminal review against the deceased non-party 2, etc. on June 28, 2018, and no other evidence exists to deem otherwise, the lawsuit of this case brought on July 3, 2018 within the period of time.

2) As to the above, the Defendant asserts that the criminal review against the deceased non-party 2 and non-party 4 constitutes a subsequent measure based on the truth-finding decision of the past History Settlement Commission, and all of the grounds for retrial or innocence are identical. As such, it should be deemed that the grounds for retrial under Article 451(1)8 of the Civil Procedure Act were one of the grounds for retrial. The Plaintiffs, at the latest, knew of the criminal review results against the non-party 4 in the process of the previous review on May 3, 2013, and thus, the lawsuit of this case, which was filed 30 days thereafter,

In principle, the grounds for retrial stipulated in each subparagraph of Article 451(1) of the Civil Procedure Act constitute separate grounds for retrial. Thus, whether the period for retrial complies with each of the above subparagraphs should be considered for each of the grounds for retrial (see, e.g., Supreme Court Decision 92Da33930, Sept. 28, 1993). Furthermore, the purpose of the retrial system lies in promoting the realization of specific justice by exceptionally eliminating the relevant judgment from res judicata effect, in cases where there are serious defects due to the error in the judgment procedure or materials forming the basis for the judgment in a case that has concluded a final judgment, or false or unfair nature, and thereby, if the judgment of conviction against the deceased non-party 2, etc. becomes the basis for the judgment subject to retrial, it should be deemed that there was a serious defect due to the error, falsity, or unfair nature of the materials forming the basis for the judgment subject to retrial, and thus, the change of the judgment against the deceased non-party 2, etc., would have a defect in the criminal procedure system, separate from the aforementioned grounds for retrial.

Therefore, the defendant's above assertion cannot be accepted.

B. Determination as to whether there exists a ground for retrial in the appellate judgment of this case

According to the above facts, the part that Nonparty 4 was convicted of perjury among the grounds for which the judgment subject to a retrial was recognized as grounds for retrial regarding the judgment of the appellate court of this case cannot be the grounds for recognizing the existence of grounds for retrial against the judgment of the appellate court of this case, as the judgment of innocence was rendered and confirmed as a result of the criminal review against Nonparty 4.

In addition, since the judgment of innocence was pronounced and finalized as a result of a criminal review on most of the persons who were convicted of fraud or perjury, including the deceased Nonparty 2 and Nonparty 3, etc., as seen above, it is difficult to maintain the discussion of the judgment subject to a retrial, which confirmed that Nonparty 9 would have been able to receive a final judgment of conviction if the statute of limitations had not expired on the suspected facts that Nonparty 3 and Nonparty 8 falsely prepared “military site management” and “the case of investigating farmland distribution status with respect to military land”.

In full view of the above circumstances and the contents of the truth-finding decision of the past Regulatory Commission, the judgment of the appellate court of this case cannot be deemed to have any grounds for retrial by the Defendant. Nevertheless, the judgment of the appellate court of this case, which accepted such grounds for retrial and dismissed the claim of the deceased among the judgment of the appellate court of this case and the judgment of the first instance, is unreasonable.

3. Conclusion

Since the plaintiffs' request for retrial is well-grounded, the part concerning the deceased among the judgment subject to retrial is revoked and the defendant's request for retrial against that part is dismissed.

Judges Park Young-young (Presiding Judge)