[1] Whether a ground for retrial under Article 451(1)1 of the Civil Procedure Act constitutes a ground for retrial where a case was tried by a panel composed of less than two-thirds of all Justices, even though the opinion on interpretation and application of laws, etc., expressed in the judgment subject to retrial was modified by the previous Supreme Court decision (affirmative)

[2] Whether the Supreme Court Decision 2010Da6680 Decided January 27, 201, which held that in a case where a long-term period has elapsed from the time of tort to the time of the closing of argument in the fact-finding trial, and a considerable change in monetary value occurs, damages for delay shall be exceptionally caused from the date of the closing of argument in the fact-finding trial (negative)

[3] The meaning of Article 451 (1) 10 of the Civil Procedure Act "when it conflicts with a final and conclusive judgment rendered before a judgment to institute a retrial," which provides for grounds for retrial

[1] According to Article 7(1) of the Court Organization Act, the judgment authority of the Supreme Court shall be conducted by a panel of not less than 2/3 of all Justices: Provided, That unless it falls under any of the subparagraphs of the same paragraph, a case may be tried by a panel of not less than three Justices, with the assent of all Justices, and a case may be tried by a panel of not less than three Justices. Article 7(1)3 of the same Act provides that "where it is deemed necessary to modify the previous opinion of the Supreme Court on the interpretation and application of the Constitution, Acts, subordinate statutes, orders, or rules," and where a panel composed of less than two-thirds of all Justices, even though the opinion on the interpretation and application of laws, etc. expressed in the judgment subject to a retrial changes the opinion expressed in the Supreme Court decision previously rendered, if it was decided by a panel of less than two-thirds of all Justices, it constitutes grounds for retrial of Article 451(1)1 of the

[2] In a case where the Supreme Court Decision 2010Da6680 Decided January 27, 201, which is a judgment subject to a retrial, filed a claim for consolation money with the State for damages caused by illegal confinement after a long period of time elapsed, and the State’s defense that had already been completed after the lapse of the statutory period of time, constitutes a violation of the good faith principle or an abuse of rights, the liability for damages arising from illegal acts should be established as a matter of principle; however, if there were considerable changes in the amount of consolation money to the extent that the damages incurred during the period of time after the lapse of 40 years and the time of the conclusion of the fact-finding proceedings, and there were no reasonable grounds for calculating consolation money in light of the above legal principles as to damages arising from illegal acts, such as the amount of damages incurred by the victim’s monetary value or the point of time after the conclusion of the arguments at the fact-finding proceedings, and there were no reasonable changes in the amount of consolation money as well as the amount of damages incurred from the date of the conclusion of arguments at fact-finding proceedings.

[3] The grounds for retrial under Article 451(1)10 of the Civil Procedure Act are established to coordinate conflicts between res judicata of the judgment subject to retrial and res judicata of a final and conclusive judgment rendered prior to the final and conclusive judgment. As such, “when a final and conclusive judgment prior to the judgment for retrial conflicts with a final and conclusive judgment rendered prior to the judgment for retrial” refers to the time when both rulings conflict with each other. Even if a final and conclusive judgment prior to the final and conclusive judgment concerns a case similar to that of the judgment subject to retrial, if res judicata of the judgment does not affect the parties to the judgment subject

[1] Article 451(1)1 of the Civil Procedure Act, Article 7(1)3 of the Court Organization Act / [2] Article 451(1)1 of the Civil Procedure Act, Article 7(1)3 of the Court Organization Act, Articles 393, 750, 751, and 763 of the Civil Act / [3] Article 451(1)10 of the Civil Procedure Act

[1] Supreme Court en banc Decision 81Da48413 Decided September 28, 1982 (Gong1982, 105) Supreme Court en banc Decision 94Da260 Decided April 25, 1995 (Gong195Sang, 1858) Supreme Court en banc Decision 95Da199 Decided May 18, 200 (Gong200Ha, 1473) / [2] Supreme Court Decision 74Da1393 Decided May 27, 1975, Supreme Court Decision 92Da48413 Decided March 9, 1993 (Gong193Sang, 1154). Supreme Court Decision 2010Da1829 Decided July 22, 2010, Supreme Court Decision 2016Da186829 Decided June 16, 2016) / [208Da186819 Decided 16, 20197

Plaintiff (Law Firm Lee & Lee LLC, Attorneys Lee Jong-ho et al., Counsel for plaintiff-appellant)

Republic of Korea (Attorney Lee Jae-deok et al., Counsel for the plaintiff-appellant)

Supreme Court Decision 2010Da6680 Decided January 27, 2011

The request for retrial shall be dismissed. The costs of retrial shall be borne by the plaintiff (Plaintiff).

The grounds for request for retrial are examined.

1. As to the ground for retrial under Article 451(1)1 of the Civil Procedure Act

According to Article 7 (1) of the Court Organization Act, the judgment authority of the Supreme Court shall be conducted by a panel of not less than 2/3 of all Justices: Provided, That the case may be tried by a panel of not less than three Justices unless it falls under any of the subparagraphs of the same paragraph, and the case may be tried by a panel of not less than three Justices. Article 7 (1) 3 of the same Act provides that "where it is acknowledged that there is a need to modify the previous Supreme Court's opinion on the interpretation and application of the Constitution, Acts, orders, or regulations." Thus, even though the opinion on the interpretation and application of laws, etc. expressed in the judgment subject to a retrial changes the opinion expressed in the Supreme Court decision previously rendered by a panel of less than 2/3 of all Justices, if the decision subject to a retrial was rendered by a panel of less than two-thirds of all Justices, it constitutes grounds for retrial (see, e.g., Supreme Court en banc Decision 81Da99, Sept. 28, 1982; Supreme Court en banc Decision 205Da64, Apr. 26, 1995).

In this case, the Supreme Court Decision 74Da1393 Decided May 27, 1975, which is cited by the plaintiff (the plaintiff, hereinafter referred to as the "the plaintiff"), held that since the liability for damages equivalent to the lost income of the victim who died due to the tort occurred at the same time when the damages occur, the damages due to the tort occurred at the same time. The Supreme Court Decision 92Da48413 Decided March 9, 1993, which held that the compensation for damages shall be the initial date of the damages due to the tort. The Supreme Court Decision 92Da48413 Decided March 9, 1993, which held that the person who died due to the injury caused by the traffic accident, which is a tort of another party, shall be entitled to the damages due to the loss of profits that the perpetrator would continue to continue to exist in the future, the court below ordered the payment of damages from the date of the above traffic accident, and the Supreme Court Decision 2010Da18829 Decided July 22, 201010>

However, in a case where the original judgment of this case was rejected on the ground that the defendant's defense that the period of extinctive prescription has already expired due to the filing of a lawsuit after the lapse of a long period from the date of the tort and the defendant's defense that became final and conclusive due to illegal confinement by the public officials belonging to the defendant (the defendant, hereinafter referred to as "the defendant"), was violated the good faith principle or abuse of rights after the lapse of the long period of time, the original judgment of this case shall be deemed to have occurred at the time of tort as a matter of principle. However, in a case where considerable changes occur in the monetary value or the national income level at the time of the conclusion of arguments at the time of the conclusion of arguments at the time of the tort and the time of the conclusion of arguments at the fact-finding court as well as at the time of the conclusion of arguments at the time of the fact-finding court, the damages for delay shall be incurred from the date of conclusion of arguments at the

Therefore, the Supreme Court precedents cited by the Plaintiff and the judgment subject to a retrial rendered by the instant Supreme Court rendered a declaration of the legal principles pertaining to the principle and exception as to the initial date of claiming damages for delay caused by unlawful acts in different cases. Therefore, the judgment subject to a retrial only indicates the scope and limitation of the application of the legal principles declared by the Supreme Court precedents, and indicates a new legal principles that apply in cases where such legal principles are not applied, and does not constitute

The amount of compensation for damage caused by a tort shall be calculated at the time of the tort, and in principle, damages for delay shall accrue from the time of the tort even if there is no separate demand for performance under the concept of fairness. In contrast, the amount of compensation for mental damage shall be determined at the time of the conclusion of arguments in the fact-finding court, comprehensively taking into account various circumstances, such as the degree of suffering suffered by the victim due to the tort itself, the perpetrator’s attitude, the age, social status and property status of the perpetrator and the victim, the citizen income level, monetary value, etc. As a result, in a case where the payment of damages for delay is near enough to disregard the change in the market value of the time of tort and the fact-finding court’s oral argument, as well as the amount of compensation for damage, if the payment of damages for delay is ordered from the time of the tort. However, in a case where a long time has elapsed from the time of the conclusion of arguments in the fact-finding court until the time of the conclusion of arguments in the fact-finding court, the amount of compensation for delay should be determined at the time of conclusion after the change.

Meanwhile, Supreme Court Decision 2007Da77149 Decided December 24, 2009, etc., the Plaintiff determined that the amount of consolation money for mental suffering caused by a tort is a discretionary matter within the discretionary authority of the fact-finding court. Since it is apparent that the instant judgment subject to review does not include any judgment on such issues, it cannot be said that the instant judgment subject to review changed its opinion expressed in the above Supreme Court Decision, etc.

Ultimately, the judgment subject to a retrial cannot be deemed to have changed the previous opinion of the Supreme Court on the initial date of calculating damages for delay caused by a tort, and therefore, it was not judged by a collegiate body composed of not less than two-thirds of all Justices, and there is no ground for retrial that does not constitute a judgment court under the law. The Plaintiff’s assertion on this point cannot be accepted.

2. As to the ground for retrial under Article 451(1)10 of the Civil Procedure Act

Article 451(1)10 of the Civil Procedure Act provides that a cause for retrial under Article 451(1)10 of the same Act is established to coordinate conflicts between res judicata of the judgment subject to retrial and res judicata of a final and conclusive judgment rendered prior to the final and conclusive judgment. “When a final and conclusive judgment prior to the judgment for retrial conflicts with a final and conclusive judgment rendered prior to the judgment for retrial” refers to the case where both rulings conflict with each other. Even if a final and conclusive judgment prior to the judgment for retrial concerns a case similar to that of the judgment subject to retrial, if res judicata effect of the judgment does not affect the parties to the judgment for retrial, it cannot be deemed as constituting a cause for retrial under the above provision (see, e.g., Supreme Court Decisions 85Da66, Feb. 11, 1986; 8

The Plaintiff asserts to the effect that there exists a ground for a retrial under Article 451(1)10 of the Civil Procedure Act, since the instant judgment subject to a retrial conflicts with the above Supreme Court decisions, the Plaintiff’s assertion on this part cannot be accepted on the grounds that the said Supreme Court precedents have res judicata effect on the party to the instant judgment subject to a retrial.

3. Conclusion

Therefore, the retrial is dismissed, and the costs of retrial are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Chief Justice Lee In-bok (Presiding Justice)