Commencement of the period of filing a petition for retrial on the ground that there has been a omission of judgment

Unless special circumstances exist, the attorney at the time of receiving the service of the judgment shall be deemed to have known as to whether there was a omission of judgment at the time of receiving the service of the judgment, and if the attorney at the time of receiving the service of the judgment knew of the omission of judgment, barring any special circumstances, the party to the lawsuit shall be deemed to have known of the omission of judgment. Therefore, the period allowed for filing a lawsuit for retrial on the ground that there was a omission of judgment as to the final judgment

Articles 422(1)9 and 426 of the Civil Procedure Act

Supreme Court Decision 67Da1067 Decided June 18, 1968 80Da111 Decided July 22, 1980

Plaintiff 1 et al., Counsel for the plaintiff-appellant-appellee

Defendant et al. and 28 others

Supreme Court Decision 80Da1193 Delivered on July 28, 1981

The action for retrial shall be dismissed.

The costs of retrial are assessed against the plaintiffs of retrial.

Judgment ex officio is made.

When a judgment was served on an attorney, barring any special circumstance, the attorney was aware of the omission of the judgment at the time of service, and if the attorney knew of the omission of judgment, barring any special circumstance, the party to the lawsuit shall be deemed to have known of the existence of the omission of judgment. Thus, the period of a retrial lawsuit filed on the ground that there was a omission of judgment as to the final judgment, should be calculated from the time when the judgment was served on the attorney (see, e.g., Supreme Court Decisions 67Da1067, Jun. 18, 1968; 80Da1061, Jul. 22, 1980; 81Da111, Aug. 24, 1982).

According to the records, it is evident that the decision subject to review of this case was served on an attorney-at-law, one of the plaintiffs' attorneys, one of the plaintiffs' attorneys, and barring any special circumstances, the plaintiff was aware of the rejection of the decision subject to review, which is the grounds for retrial, at this time, alleged in this lawsuit. Thus, the lawsuit of this case was filed on November 8, 1981, which is 30 days after the date of service of the above decision, and thus, it is obvious that the lawsuit of this case was filed on the record that it was filed on November 8, 1981 after the expiration

Therefore, the lawsuit of this case is dismissed, and the costs of the retrial are assessed against the plaintiff, and it is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Chang-chul (Presiding Justice)