The lawsuit of retrial of this case is dismissed without any grounds for retrial.

Inasmuch as the grounds for retrial under Article 451(1)6, 7, 8, 9, and 10 of the Civil Procedure Act do not constitute grounds for retrial, rejection shall be dismissed.

Article 401 of the Civil Act

2017Res or 102 Demurrer against Distribution

AA

Korea

October 01, 2018

on October 24, 2019

1. The lawsuit of this case shall be dismissed.

2. The costs of retrial shall be borne by the plaintiff.

Purport, purport of appeal and request for retrial

The judgment subject to a retrial and the judgment of the court of first instance are revoked. With respect to the auction of real estate (00,000), among the distribution schedule prepared on December 28, 2015, the above support was deleted from the amount of dividends to the defendant, and the dividends are distributed in proportion to the order of claims and the amount of claims of each creditor (the plaintiff at the first instance court of the case subject to a retrial claimed correction of the distribution schedule by allocating the amount of dividends to the defendant to the plaintiff as zero won and distributing the amount of dividends to the plaintiff, but at the appellate court modified the above purport of the claim. This is reasonable to deem that the distribution schedule should be revised for the plaintiff who is the debtor of the lawsuit subject to a demurrer against distribution to the extent that the plaintiff is the debtor of the lawsuit subject to a retrial, the correction of the distribution schedule is not only the meaning of the purport of the claim to clarify the purport of the claim, but also the replacement of the lawsuit is not an exchange change).

1. Determination of the original judgment

The following facts are significant or obvious to this court in terms of records:

A. On December 31, 2015, the Plaintiff filed a lawsuit of demurrer against the Defendant as the Changwon District Court Branch Branching 0000dan0000,000, and the said court rendered a judgment dismissing the Plaintiff’s claim on May 20, 2016. The Plaintiff dissatisfied with the judgment and appealed with 000Na0000, the appellate court rendered a judgment to dismiss the Plaintiff’s appeal on August 17, 2017.

C. The Plaintiff appealed and appealed to the Supreme Court Decision 000Da00000, but on November 23, 2017, the judgment subject to a retrial became final and conclusive as the final appeal was dismissed due to the failure to conduct a trial.

2. Determination as to the existence of a ground for retrial

A. The plaintiff's assertion

The Plaintiff forged or altered the document for the purpose of receiving both copies of the document by the Defendant.

A false statement without recognizing any error constitutes perjury. ③ A lawsuit seeking cancellation of a capital gains tax imposition disposition, which is the basis of the judgment subject to a retrial, is pending, and ④ a judgment was omitted even in the absence of the taxation disposition by the head of △ District Office and the seizure of the defendant. ⑤ Since the judgment subject to a retrial violates the principle of no taxation without law prescribed in the Constitution, the judgment subject to a retrial asserts to the effect that there exists a ground for retrial under Article 451(

B. Whether grounds for retrial under Article 451(1)6 and 7 of the Civil Procedure Act exists

1) A lawsuit for retrial on a final and conclusive judgment shall be permitted only when there exist grounds for retrial stipulated under each subparagraph of Article 451(1) of the Civil Procedure Act. Thus, if the ground alleged by the Plaintiff for retrial does not constitute such ground, the lawsuit for retrial is unlawful.

2) As to the grounds for a retrial under Article 451(1)6 and 7 of the Civil Procedure Act (when a document or any other article as evidence for a judgment has been forged or altered), a lawsuit for retrial may be brought only when the judgment of conviction, etc. becomes final and conclusive, or when it is impossible to render a final and conclusive judgment, etc. on conviction for reasons other than lack of evidence, as to the act subject to punishment under Article 451(2) of the same Act (when the document or any other article as evidence for a judgment has been forged or altered), and Article 451(1)6 and 7 (when the false statement by a witness, expert witness, or interpreter or the false statement by a party or legal representative has become evidence for a judgment). Therefore, if no such requirement is provided, the lawsuit for retrial itself is unlawful and thus, it shall be dismissed without examining the judgment on the existence of

3) As to the grounds for retrial alleged by the Plaintiff, there is no assertion or proof as to whether the requirements under Article 451(2) of the Civil Procedure Act were satisfied, such as a final and conclusive judgment of conviction, and thus, the Plaintiff’s lawsuit on this part is unlawful.

C. Whether there exists a ground for retrial under Article 451(1)8 of the Civil Procedure Act

1) The term “when a judgment or any other judgment or administrative disposition, which is the basis for a cause for a retrial under Article 451(1)8 of the Civil Procedure Act, has been altered by a different judgment or administrative disposition” means a case where the judgment or administrative disposition, which is the basis for a retrial under Article 451(1)8 of the Civil Procedure Act, is legally binding, or where a judgment or administrative disposition, which is the basis for fact-finding, has been altered by another judgment or administrative disposition, which is the basis for fact-finding in the final judgment, has been finally and retroactively changed by another judgment or administrative disposition after it was finally binding, or where the judgment or administrative disposition, which is the basis for fact-finding in the final judgment, has been adopted as evidentiary materials from the fact-finding in the final judgment, and is likely to affect the fact-finding in the final

2) According to the purport of the evidence Nos. 7 and 12 and the entire pleadings, the Plaintiff’s director of the △△ District Office

A lawsuit seeking revocation of disposition imposing capital gains tax against B was dismissed at the first instance court (Seoul District Court 000Guhap0000), and the appeal filed by the Plaintiff against it was also dismissed (Seoul High Court 000Nu000), and the Plaintiff’s appeal against it was also dismissed due to a trial failure (Supreme Court 000Nu000), and the Plaintiff’s appeal against it was also dismissed due to a trial failure (Supreme Court 000Du000), and there are no circumstances to deem that the judgment or administrative disposition that forms the basis for the judgment subject to a retrial was modified, and thus, this part of the lawsuit seeking retrial is unlawful.

D. Whether there exists a ground for retrial under Article 451(1)9 of the Civil Procedure Act

1) In light of the proviso of Article 451(1) of the Civil Procedure Act, a lawsuit for a retrial cannot be filed against the judgment of the court of final appeal which became final and conclusive on the ground of appeal asserted in the ground of appeal, and if the judgment of the court of final appeal is omitted, it can be known if the original copy of the judgment was served, and if there is any omission in the judgment, it can be known if the original copy of the judgment was read. Thus, barring any special circumstance, it could be asserted as the ground of final appeal. However, if the original copy of the judgment of the court of final appeal was served, it can not be asserted as the ground of final appeal. Thus, barring any special circumstance, regardless of whether omission in judgment in the final appeal was alleged as the ground of final appeal, it cannot be a legitimate ground of final appeal against the judgment of the court below (see, e.g., Supreme Court Decision 2006Da4205, Jun. 29, 2007).

2) In light of such legal principles, the Plaintiff filed a final appeal against the judgment subject to a retrial and received a judgment dismissing the appeal. Therefore, the omission of judgment cannot be a legitimate ground for retrial against the judgment subject to a retrial. Therefore, the Plaintiff cannot file a lawsuit for retrial

E. Whether there exists a ground for retrial under Article 451(1)10 of the Civil Procedure Act

(1) Article 422(1)10 of the Civil Procedure Act provides that the grounds for retrial under Article 422(1)10 of the same Act shall be established to coordinate conflicts between res judicata of a final and conclusive judgment rendered prior to the judgment subject to retrial and res judicata effect of a final and conclusive judgment rendered prior to the judgment subject to retrial. "When a final and conclusive judgment prior to the judgment for retrial conflicts with a final and conclusive judgment rendered prior to the judgment for retrial" refers to cases where the effect of a final and conclusive judgment affects the parties to the judgment subject to retrial, and even if the final and conclusive judgment prior to the judgment for retrial and its contents are similar, if the res judicata effect of the judgment does not affect the parties to the judgment for retrial, it does not constitute the grounds for retrial (see Supreme Court Decision 97Da32833, Mar. 24, 1998).

3. Conclusion

As such, the lawsuit of this case is unlawful and thus, it is decided as per Disposition.