A. Method of determining whether a retrial suit filed in the first instance court is appropriate for a case which rendered a judgment on the merits in the appellate court

B. Principles on the interpretation of procedural acts

(c) Where a lawsuit for retrial is transferred to the competent court, the time to determine whether the period for filing the petition is observed;

A. Where an appellate court rendered a judgment on the merits in the first instance court, it is not possible to institute a lawsuit on the first instance court's judgment. In such a case, a lawsuit on the first instance court's judgment, which is not the appellate court's judgment, is not the case subject to a retrial, and thus, it is not a lawsuit which lacks the litigation requirements for retrial and is not a lawsuit which merely violates the jurisdiction of retrial. However, whether a lawsuit on the merits of a case which was instituted in the appellate court's judgment is subject to a judgment on the first instance or a lawsuit on the appellate court's judgment is not determined with only an indication of the judgment on the grounds for retrial as stated in the petition for retrial (whether the grounds for retrial

B. Generally, the interpretation of procedural acts, unlike the substantive acts, cannot be interpreted in conflict with or contradictory to the contents indicated and indicated, by thoroughly indicating and externalism, unlike the substantive acts. However, if the indicated fishing gear is excessively and uniformly interpreted, it may result in unfair consequences contrary to the purpose of the litigation system to remedy the rights of the parties and the economy in the litigation. Therefore, it is necessary to consider the entire allegations of the parties regarding the procedural acts and interpret the procedural acts objectively and reasonably in consideration of the parties’ intent to conduct such procedural acts.

C. Although a lawsuit for retrial was filed in the first instance court during the period for filing a retrial, where the said lawsuit was deemed to be subject to a judgment of appeal in light of the grounds for retrial, etc. and was transferred to the appellate court, whether the period for filing a retrial is observed shall be based on the time it was filed in the first instance court in light of the provisions of Article 36(1) of the Civil Procedure Act

(a) Articles 422(3)(b) and 226, 425(c), 36(1), and 422 of the Civil Procedure Act;

Kim-Jon Kim Jae-sik et al., Counsel for defendant-appellant

Kim Jong-hae et al., the defendants et al., Counsel for the defendant-appellant

Seoul High Court Decision 82Na39 delivered on September 27, 1983

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal by the defendant (Plaintiffs for review) are examined.

1. According to the provisions of Article 422(3) of the Civil Procedure Act, when an appellate court rendered a judgment on the merits of a case, it shall not file a lawsuit for retrial against the judgment of the court of first instance. Thus, a lawsuit for retrial brought in the court of first instance against the judgment of the court of first instance, which is not the judgment of appellate, is a judgment which is not the object of retrial, and it is illegal or inappropriate to lack the litigation requirements for retrial,

However, whether a lawsuit filed in an appellate court against a case on which the appellate court rendered a judgment on the merits is subject to the judgment of the first instance or is subject to the judgment of the appellate court shall not be determined with only an indication of the judgment on retrial stated in the petition for retrial, but shall be determined by examining the arguments stated in the grounds for retrial, and taking into account the intent of the party who filed the petition for retrial. Even if the petition for retrial specifies the judgment of the first instance, where the grounds for retrial alleged in the grounds for retrial are recognized as pertaining to the judgment of the appellate court (the same shall apply to cases where the judgment of the first instance and the judgment of the first instance are common grounds for retrial), it is reasonable to deem that the lawsuit is subject to the judgment of the appellate court and the indication of the judgment to be reviewed is erroneous. Thus, the first instance court in receipt of the petition for

Generally, unlike legal acts under substantive law, the interpretation of procedural acts cannot be interpreted in conflict with or contradictory to the contents indicated by thorough display and externalism. However, if the indicated fishing gear is excessively uniform and formal interpretation, it may result in unfair consequences contrary to the purpose of the litigation system for remedying the rights of the parties and the economy in the litigation. Therefore, it is necessary to consider the whole arguments of the parties and to interpret procedural acts objectively and rationally in consideration of the parties' intent to conduct procedural acts.

As above, even if a retrial petitioner submitted to the court of first instance indicates the first instance judgment by a judgment to conduct a retrial, if it is obvious that the grounds for retrial alleged in the grounds for retrial are related to the appellate trial judgment itself or the litigation data (the same shall apply to cases where the grounds for retrial are common to the judgment of first instance and the judgment of first instance), it shall be deemed that the plaintiff's intention is subject to a retrial of the judgment of first instance, and it is objective and reasonable interpretation to deem that the plaintiff submitted to the court of first instance by misunderstanding the indication of judgment to conduct a retrial, and submitting it to the court of first instance by transferring it to the appellate court, which is the competent court of first instance, even if there is no ground for retrial as to the appellate judgment, and that there is no clear ground for retrial as to the appellate court's judgment, and that there is no ground for retrial that the plaintiff's ground for retrial alleged in the ground for retrial is related to the appellate court's judgment. In addition, it shall not be deemed reasonable to prevent any economic damage that can not be recovered to the parties, as well as economic action

A party member has expressed his/her view that the lawsuit for a retrial is unlawful and not likely to be transferred to his/her jurisdiction at all times as long as the judgment of the first instance court is clearly stated in the previous petition for retrial (see, e.g., Supreme Court Decision 70Da252, May 26, 1970; Supreme Court Decision 71Da1077, Jul. 27, 197; Supreme Court Decision 79Da293, Mar. 11, 1980; etc.). However, such a view is to be modified.

2. According to the records of this case, the plaintiff filed a lawsuit against the defendants for the registration of transfer of ownership and the cancellation of registration of preservation of ownership against the 142 YYY 142 YYYYYYY 142 YYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYY YYYYYYYYYYYYYYYYYYYYYYYYYYYY YYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYY.

However, the court below held that, where the appellate court rendered a judgment on the merits as above, only the appellate court's judgment can bring a lawsuit for a retrial, and that the appellate court's judgment cannot bring a lawsuit for a retrial against the judgment of the court of first instance, and that, on the other hand, the period allowed for filing a lawsuit for retrial of this case shall be calculated based on the time when the petition for retrial of this case reaches the court of original judgment, which is the appellate court, pursuant to the above transfer decision, and that the period allowed for filing a lawsuit for retrial of this case should be calculated based on the actual arrival of the court of original judgment, which is the appellate court. After the lapse of 30 days from the time the

However, as mentioned above, the lawsuit of this case is asserted that the statement of the witness employed in the appellate court's judgment as grounds for retrial is an perjury, and therefore, it shall be deemed that the first instance court transferred the above lawsuit to the court below which rendered the judgment of appeal was a legitimate measure. Thus, according to the provisions of Article 36 (1) of the Civil Procedure Act, if the decision of transfer became final and conclusive, the lawsuit shall be deemed to have been pending in the court which received the transfer from the beginning. Thus, as long as the lawsuit of this case was instituted in the Suwon District Court, which is the first instance court, in the period of retrial, the lawsuit of this case shall be deemed to have been instituted in the court of first instance within the period of lawful retrial, and

Ultimately, the judgment of the court below is erroneous by misapprehending the legal interpretation of Article 422(3) of the Civil Procedure Act and Article 36(1) of the same Act, which affected the conclusion of the judgment, and this constitutes a ground for reversal under Article 12(2) of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings, and therefore, the argument on this point

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park So-young (Presiding Justice) Lee So-young (Presiding Justice) Lee So-young, Kim So-young, Lee So-young, Lee So-young, Lee So-young, Lee So-young, Lee So-young, Lee So-young