Where an appellate court rendered a judgment on the merits, a lawsuit for retrial against the judgment of the first instance

When the appellate court rendered a judgment on the merits of the case at the appellate court, the lawsuit for retrial filed against the judgment of the court of first instance is unlawful. In this case, the court of first instance, which received a lawsuit for retrial, did not err by failing to transfer the case to the appellate court, and the appeal case for retrial continued in the appellate court, and such defects cannot be deemed cured.

Article 422 of the Civil Procedure Act

Supreme Court Decision 71Da1077 Delivered on July 27, 1971, 70Da252 Delivered on May 26, 1970

Plaintiff (Re-Defendant)

Defendant (Re-Appellant) (Attorney Choi Jong-sik, Counsel for the defendant-appellant)

Gwangju High Court Decision 78Na489 delivered on February 1, 1979

The appeal is dismissed.

The costs of appeal shall be borne by the defendant.

The grounds of appeal by the defendant (the plaintiff-appellant) are examined.

When the appellate court rendered a judgment on the merits of the case at the appellate court, it is clear pursuant to Article 422(3) of the Civil Procedure Act that the plaintiff cannot bring a lawsuit on the merits of the case at the appellate court. Thus, the lawsuit filed by the appellate court against the judgment at the first instance court shall be deemed to be unlawful. In this case, the appellate court at the first instance court which received a lawsuit on the retrial did not transfer the case at the appellate court, and the appellate court at the first instance court which continued to deliver the case at the appellate court, and such defect cannot be deemed to have been cured as in the theory of lawsuit (see, e.g., Supreme Court Decision 71Da1077, Jul. 27, 197; Supreme Court Decision 70Da252, May 26, 1970). The appellate court's rejection of the lawsuit at the appellate court for the same reason is just, and it cannot be deemed that the judgment at the appellate court erred by misapprehending the legal principles or violating the principle of equity.

All arguments are without merit.

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

Justices Yu Tae-hee (Presiding Justice)