[1] In a case where an appeal is withdrawn due to another person's act subject to criminal punishment, whether it can be recognized as grounds for retrial corresponding to Article 451 (1) 5 of the Civil Procedure Act (affirmative), and whether the "an act of another person subject to criminal punishment" includes a crime of breach of trust committed by a party's agent (affirmative with qualification)

[2] In a case where there are grounds for a retrial under Article 451(1)5 of the Civil Procedure Act for any procedural act, whether the validity of the pertinent procedural act is naturally denied in a retrial procedure (affirmative)

[3] In a case where Gap, who was the substantial representative of the defendant corporation at the time of the judgment subject to a retrial, received personal money in collusion with the other party to the lawsuit and withdrawn an appeal against the judgment of the court of first instance, the case holding that the judgment of the court below which dismissed the defendant company's request for retrial by recognizing the validity of the grounds for retrial under Article 451 (1) 5 of the Civil Procedure Act

[1] Article 451(1)5 of the Civil Procedure Act recognizes "a case where a confession has been made due to another person's act subject to criminal punishment" as grounds for retrial. This is intended to allow the revocation of a final judgment by means of an emergency means such as retrial to the purport that the validity of litigation conducted by another person's act directly due to another person's criminal act and its final judgment based thereon cannot be accepted in light of the concept of justice, which is the ideology of legal order. Thus, even in a case where an appeal is withdrawn by another person's act subject to criminal punishment and the judgment of the court below became final and conclusive due to another person's act, the act of another person subject to criminal punishment shall be deemed as grounds for retrial corresponding to a confession. Further, "an act of another person subject to criminal punishment" may include a crime of breach of trust committed by a representative of the party. However, in order to recognize it as grounds for retrial, it is not sufficient to simply mean that a representative was convicted of a crime of breach of trust in relation to the litigation at issue, and therefore, it should be deemed as cases where

[2] Where a ground for retrial under Article 451(1)5 of the Civil Procedure Act exists in any procedural act, the pertinent procedural act in a retrial procedure is naturally denied in the purport of the retrial system to exclude the validity of a final and conclusive judgment based on such procedural act, and accordingly, the court shall review and determine the main text of the case subject to retrial on the premise that the said procedural act does not exist, and there is no room to acknowledge the validity of procedural act differently.

[3] In a case where Gap, a substantial representative of the defendant corporation at the time of the judgment subject to a retrial, in collusion with the other party to the lawsuit, received personal money and withdrawn an appeal against the judgment of the court of first instance, the case holding that the judgment below dismissed the defendant company's petition for retrial by recognizing the validity of withdrawal of appeal, although there were grounds for retrial corresponding to Article 451 (1) 5 of the Civil Procedure Act, since Gap was convicted as a crime of occupational breach of trust against the act of withdrawal of appeal

[1] Article 451 (1) 5 of the Civil Procedure Act / [2] Article 451 (1) 5 of the Civil Procedure Act / [3] Article 451 (1) 5 of the Civil Procedure Act

Busan Construction Co., Ltd. and one other (Law Firm Taeap et al., Counsel for the plaintiff-appellant)

Seocho Logistics Terminal Co., Ltd. (Law Firm LLC, Attorneys Song Jae-sik et al., Counsel for the defendant-appellant)

Silsan Cargo Terminal Co., Ltd. (LLC, Kim & Lee LLC, Attorneys Oh taxon et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2009ReNa440 decided September 10, 2010

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

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Article 451(1)5 of the Civil Procedure Act recognizes “a case where a confession has been made due to an act committed by another person subject to criminal punishment” as grounds for retrial. This is intended to allow revocation of a final judgment by means of an emergency means such as retrial to the purport that it would not allow its validity in light of the concept of justice, which is the ideology of legal order. Therefore, it is reasonable to deem that a case where an appeal is withdrawn due to another person’s act subject to criminal punishment and the judgment of the court below became final and conclusive due to such another person’s act, constitutes grounds for retrial corresponding to the above confession. In addition, “a person’s act subject to criminal punishment” can be included in the crime of breach of trust committed by a party’s agent, but it is not sufficient to recognize it as grounds for retrial simply by the fact that a representative was convicted of a crime of breach of trust in relation to the litigation in question, and it should be deemed that the effect of litigation conducted by the said agent, such as the case where the other party or his representative was in collusion and thus, should be deemed as unlawful.

2. According to the reasoning of the judgment of the court below, the court below acknowledged the contents of the judgment subject to a retrial in this case and its final conclusion, and facts as to the confirmation of conviction of occupational breach of trust against the non-party 1 and 2, and judged that the judgment of the court below has grounds for retrial corresponding to Article 451 (1) 5 of the Civil Procedure Act in the judgment subject to a retrial, since the substantial representative director of the company, who was aware that he violated his duties and thereby lost to the company for his own interest or a third party, withdrawn appeal against the judgment of the court of first instance, can be deemed as having been led to the confession of the company due to the other person's breach of trust. The judgment of the court below is justified in light of the above legal principles and records.

3. However, although the court below acknowledged that there were grounds for retrial in the judgment subject to a retrial as above, it is difficult to accept that the judgment subject to a retrial, which declared that the withdrawal of appeal made by Nonparty 1, etc. was legitimate for the following reasons, was justified in its conclusion.

In other words, the court below held that the appellant’s withdrawal of appeal against the appellate court is a unilateral single act in the lawsuit where the appellant withdraws the request for a trial by appeal against the appellate court, and the representative director or manager of the company is authorized to do all judicial or extrajudicial acts as to the company’s business, and that the non-party 3 or the manager, who was the legal representative director of the defendant, prepares and submit the written withdrawal of appeal shall be deemed to be based on his free decision-making. Thus, even if the non-party 1 submitted the written withdrawal of appeal solely for his own interest, it is only an internal subjective motive, and the intention of withdrawal in accordance with the procedural acts revealed out in the outer side was actually existed, and there was no other evidence to view that the non-party 3, the legal representative director of the company, was aware of the intention of the non-party 1’s breach of trust, and the above lawsuit was already terminated.

However, in a case where there is a ground for a retrial under Article 451(1)5 of the Civil Procedure Act in any procedural act, the validity of the procedural act in a retrial procedure is naturally denied in the purport of the retrial system to exclude the validity of a final and conclusive judgment based on such procedural act, and accordingly, the court shall review and determine the main text of the case subject to retrial on the premise that the said procedural act does not exist, and there is no room to acknowledge the validity of the said procedural act

Nevertheless, while the court below determined that there exists a ground for a retrial under Article 451(1)5 of the Civil Procedure Act in the withdrawal of Nonparty 1’s appeal, it recognized its validity and dismissed the Defendant’s request for retrial of this case. In so determining, the court below erred by misapprehending the legal principles on the validity of procedural acts having grounds for a retrial under Article 451(1)5 of the Civil Procedure Act, which affected the conclusion of the judgment. The ground for appeal

4. 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 Poe-dae (Presiding Justice)