A. Grounds for retrial under Article 422(1)6 and 7 of the Civil Procedure Act, which is applicable mutatis mutandis by Article 8(2) of the Administrative Litigation Act

(b) Whether it constitutes “when it is impossible to make a final judgment of conviction for reasons other than defects in evidence” in a case where a prosecution was instituted against a witness of the case subject to retrial but his whereabouts became unknown;

A. "When a false statement of a witness has been proved" under Article 422 (1) 7 of the Civil Procedure Act or "when a document or any other article used as evidence for a judgment has been forged" under Article 422 (1) 6 of the same Act refers to cases where the false statement or forged document, etc. is provided as direct or indirect material for fact-finding which served as the reason for the order of judgment, and it is probable that the court would have rendered a judgment different from the judgment in question if it had not taken into account such false statement or forged document, etc., and only with the remaining evidence except such false statement or forged document, it is probable that the fact of recognition can be recognized or that if there was no such false statement or forged document, it would be different from the order of the judgment, or if there was no such false statement or forged document, etc., it does not constitute a ground for retrial, or if it was related to a situation that does not affect the recognition of major facts, it does not constitute a ground for retrial.

B. Where a witness who testified in a case subject to a judgment for retrial was indicted for perjury, but his/her whereabouts is unknown, it cannot be deemed that the case constitutes “when a final judgment of conviction cannot be rendered for reasons other than lack of evidence” under Article 422(2) of the Civil Procedure Act.

A. Article 8(2) of the Administrative Litigation Act (Article 422(1)6 and 7 of the Civil Procedure Act); Article 8(2) of the Administrative Litigation Act (Article 422(2) of the Civil Procedure Act)

A. Supreme Court Decision 92Da33695 Decided October 11, 1988 (Gong1988, 1404) (Gong1994Sang, 58)

Lee-nam et al., Counsel for the plaintiff-appellant

Jeonnam-do Governor (Attorney Cho Jong-hee et al., Counsel for defendant-appellant)

Gwangju High Court Decision 87Gu55 delivered on March 17, 1988

Gwangju High Court Decision 92Re-Gu13 delivered on August 19, 1993

The appeal is dismissed.

The costs of appeal shall be assessed against the plaintiff (appellant).

The grounds of appeal by the Plaintiff (hereinafter only referred to as the Plaintiff) attorney are examined.

Article 422 (1) 7 of the Civil Procedure Act provides that "when a witness makes a false statement," or Article 422 (1) 6 of the same Act provides false statement or forged document or any other article used as evidence for a judgment subject to a retrial" means a case where it is probable that the court would have rendered a judgment different from the above judgment unless such false statement or forged document were taken into account (see, e.g., Supreme Court Decisions 87Meu2602, Dec. 27, 198; 87Meu1973, 1974, Oct. 11, 198; 200Hun-Ga44, etc.). It is hard to find that there was a false statement or forged document and any article used as evidence other than the above false statement or falsified document, which could not affect the conclusion of the judgment due to the lack of evidence to acknowledge that there was a false statement or forged document, but it could not affect the remaining facts of the judgment subject to a retrial because it did not affect the court's testimony due to a new judgment.

The judgment of the court below to the same purport is somewhat insufficient, but it is just and acceptable, and there is no error of law by misunderstanding facts against the rules of evidence, such as theory of lawsuit, or by misapprehending the legal principles on retrial.

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 Cho Chang-tae (Presiding Justice)