Whether a judgment on all allegations by the parties or methods of offence and defense should be indicated on the grounds of the written judgment (negative); and whether a specific and direct judgment on the matters alleged as the grounds of appeal is not indicated, but can be known to the general purport of the grounds of the judgment, or where it is evident that the assertion will be rejected, even though it did not make a decision on the grounds of the written judgment (negative)

In the reasoning of a written judgment, it would be sufficient to indicate the judgment on the party’s allegations and other means of offence and defense to the extent that it can be recognized that the text is fair, and there is no need to determine all of the parties’ allegations or means of offence and defense (Article 208 of the Civil Procedure Act). Therefore, even if no specific and direct determination on the matters alleged as the grounds of final appeal was indicated in the judgment of the court of final appeal, if it is possible to find out that the allegations were cited or rejected in light of the overall purport of the reasons of the judgment, it cannot be deemed an omission of judgment. Even if the court did not make a decision, if it is obvious that

Articles 208 and 451(1)9 of the Civil Procedure Act

Supreme Court Decision 85Da43 delivered on August 27, 1985 (Gong1985, 1305) Supreme Court Decision 68Da1859 delivered on June 10, 1969 (Gong17-2, 171) Supreme Court Decision 2002Da56116 Delivered on December 26, 2002 (Gong2003Sang, 488)

Dong Young-young Co., Ltd. and one other (Attorneys Kim Jong-soo et al., Counsel for the plaintiff-appellant)

East Asia Ampia Association (Attorney Ho-type et al., Counsel for the defendant-appellant-appellee)

An intervenor;

Supreme Court Decision 2004Da11599 Delivered on February 10, 2006

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

The grounds for request for retrial shall be examined.

1. As to the ground for retrial under Article 451(1)9 of the Civil Procedure Act

A. The term “when a judgment was omitted on a material fact that may affect the judgment” as a ground for a retrial under Article 451(1)9 of the Civil Procedure Act refers to the case where a party’s attack and defense was submitted in a lawsuit and where no judgment is indicated in the reasoning of the judgment as to the fact that may affect the judgment.

The court of final appeal may deliberate only to the extent of filing an objection (Article 431 of the Civil Procedure Act) according to the grounds of final appeal (Article 424 of the Civil Procedure Act). The final appeal is filed only on the ground that there is a violation of the Constitution, Acts, subordinate statutes, orders, or rules that affected the judgment, unless there is an absolute grounds of final appeal under Article 424 of the Civil Procedure Act (Article 423 of the Civil Procedure Act). Thus, matters for which the parties specifically asserted or not urged ex officio investigation as the grounds of final appeal, which affected the judgment, are not legitimate grounds of final appeal, and there is no need to make a judgment on the precedents, etc., which show that there is a general provision or relation to the law, and thus, even if it did not make a judgment, it shall not be deemed omission of the judgment (see

In addition, the reasoning of the written judgment is sufficient to indicate the judgment on the party's assertion and other means of offence and defense to the extent that it can be recognized that the text is fair, and there is no need to determine all of the party's allegations or means of offence and defense (Article 208 of the Civil Procedure Act). Therefore, even if a judgment by the court of final appeal does not state any specific and direct determination on the matters alleged as the grounds of final appeal, it cannot be deemed an omission of judgment if it is possible to find out that the assertion was quoted or rejected in light of the overall purport of the reasoning of the judgment. Even if the court of final appeal did not make a decision, if it is obvious that the assertion was rejected even if it was not actually determined, it cannot be deemed an omission of judgment as it did not affect the conclusion of the judgment, and there is no illegality of omission of judgment (see, e.g., Supreme Court Decisions 68Da1859, Jun. 10, 19

B. The judgment subject to a retrial is based on the premise that: (a) one of the parties has already commenced performance when one of the parties has already commenced performance; and (b) the other party is expected to have incurred unexpected damages if the contract has been terminated by the other party at this stage; (c) barring special circumstances, such as the parties’ special agreement not to commence the performance before the due date; (b) the original judgment (hereinafter “the original judgment”) acknowledged that the Plaintiff (the re-defendant; hereinafter “Plaintiff”) started performance by providing the full performance of the intermediate payment before the due date for performance; and (d) concluded that the basic facts were modified after the conclusion of the instant sales contract on the sole ground that the market value of the instant land has increased, and thus, it cannot be deemed that there was no special error in the misapprehension of legal principles as to the Plaintiffs’ request for the performance of the contract before the due date for performance cannot be deemed to have commenced, or that there was no special error in the misapprehension of legal principles as to the Plaintiffs’ request for the performance of the contract prior to the due date for performance.

In light of the above legal principles, it can be deemed that the judgment on the grounds of appeal by the defendant related to the proviso to Article 468 of the Civil Act that the repayment prior to the time limit for intermediate payment should be denied, and that the defendant's ground of appeal and intermediate payment for the defendant related to the proviso to Article 468 of the Civil Act is for the defendant who is the seller, or because the repayment prior to the time limit for payment harms the defendant's interest, and thus, the waiver of the benefit of time should be restricted. In addition, according to the records of the judgment subject to a retrial, the judgment on the grounds of appeal by the defendant related to Article 153 (2) of the Civil Act is included in a judgment of rejection. In light of the records of the judgment subject to a retrial, even if the appellate brief filed by the defendant within the time limit for submitting the appellate brief was not explicitly asserted by specifying the provisions

C. The decision subject to a retrial is determined to be different from the case in which the Supreme Court Decision 92Da31323 delivered on January 19, 1993 was rendered. In so doing, it is obvious that the purport of rejecting the Defendant’s argument in the grounds of appeal that the court below made a interpretation and decision contrary to the above Supreme Court Decision is to be excluded.

In addition, according to the records of the judgment subject to a retrial, the defendant is not aware that the court below, as the grounds for appeal, alleged that the defendant did not assert any interpretation and decision contrary to the Supreme Court Decisions 80Da2784 Delivered on October 27, 1981, 93Da56954 Delivered on May 13, 1994, 97, 97Da9369 Delivered on June 27, 1997, and 2002Da46492 Delivered on November 26, 2002, and therefore, it cannot be said that the judgment subject to a retrial was erroneous because the court below failed to make a decision relating to each of the above judgments.

D. According to the reasoning of the judgment subject to a retrial, the judgment of the court below, which cited the judgment of the court below that the defendant's request for the increase of the purchase price in this case itself violates the principle of the Civil Act that requires the acceptance of binding force of the contract concluded on the basis of free will, and thus, the plaintiffs, the purchaser, did not accept the request for increase, or did not have a definite answer, or did not violate the good faith principle, should not be deemed to have been held to have been erroneous in the judgment of the court below that the provision of part payments was legitimate as the commencement of performance by the plaintiffs before the due date.

E. Ultimately, we cannot accept all the allegation that there was an omission in judgment for retrial.

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

Examining the grounds for the judgment subject to a retrial, the judgment of the court subject to a retrial, which states that the case at the Supreme Court Decision 92Da31323 delivered on January 19, 193 differs from the case at issue of the judgment subject to a retrial, is justifiable. As such, it cannot be said that the judgment subject to a retrial either interpreted a law contrary to the previous Supreme Court Decision or changed the opinion on statutory interpretation and application, and therefore, it cannot be said that there is any error of law in the composition of the court of the judgment subject to a retrial, which was tried by a panel comprised of not less than

3. Conclusion

Therefore, the retrial of this case is dismissed as it is without merit. The costs of retrial are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Si-hwan (Presiding Justice)