The starting point of reckoning the period of review in litigation for retrial

The testimony of a witness admitted as evidence of the judgment subject to a retrial is recognized as a false statement and thus the judgment of conviction becomes final and conclusive, if the State files a lawsuit for a retrial as a plaintiff, the prosecutor is a state agency, but it does not naturally be entitled to perform the state litigation in a specific case, so the starting point of the period of a retrial is not the basis when the prosecutor is aware of

Article 426 of the Civil Procedure Act

Plaintiff

Korea

Seoul High Court (69Na2996)

Daejeon District Court (69A728) in the first instance

The defendant (Plaintiffs for review)'s appeal is dismissed.

The litigation costs for retrial shall be borne by the defendant.

The original judgment shall be revoked.

The plaintiff (the defendant)'s claim is dismissed.

All costs of lawsuit shall be borne by the plaintiff (defendant).

It is confirmed that the real estate recorded in the attached list is owned by the plaintiff.

Litigation costs shall be borne by the defendant.

The judgment of the first instance shall be revoked.

The plaintiff's claim is dismissed.

All the costs of lawsuit shall be borne by the plaintiff in the first and second instances.

According to the Civil Judgment No. 3 (Judgment), which is attached to the re-adjudication, and the civil judgment No. 1-7, which is not disputed in the establishment of the re-adjudication, the final and conclusive judgment to conduct re-adjudications shall be based on the evidence No. 1-7 and the testimony of Non-Party No. 1, the witness of the court below recognized that the plaintiff purchased the real estate in the attached list from Non-Party No. 2, the owner of the property in the attached list on July 28, 1945, and rendered a judgment in favor of the plaintiff on the premise of the same fact. Accordingly, the above witness No. 1 is deemed to have made a false statement on the above testimony in the Daejeon District Court Decision No. 72Ra20 delivered on February 9, 1972, and was sentenced to a conviction of perjury on perjury on February 17, 1972.

The plaintiff's attorney, a public prosecutor, was aware of the same fact from around February 17, 1972 at the time when the above criminal judgment became final and conclusive, and thus, the defendant's lawsuit for retrial of this case filed on March 28, 1972 is unlawful with the lapse of the period for filing the petition for retrial. However, according to Articles 7, 2, 5 (1), and 6 (2) of the Act on Litigation to Which the State is a Party, the state's litigation performer is qualified only by the Minister of Justice, the heads of prosecutor's offices at all levels, or the heads of administrative agencies, and even if the public prosecutor is the State's agency, the state's agency is not entitled to conduct state litigation in specific cases. According to the records, the Minister of Justice has designated the non-party 3, etc. of Daejeon regional tax office as the litigation performer for retrial of this case on March 20, 1972, and the defendant filed the lawsuit of this case within the legitimate period of time. Thus, the defendant's assertion in this case is groundless.

Therefore, I first examine the existence of the grounds for retrial.

If the purpose of the review of this case is to examine the final judgment in comparison with the records and evidence, the original judgment which was invoked by the above final judgment is that the plaintiff purchased the above real estate from Japan on July 28, 1945 and paid the price in advance by the witness non-party 1's testimony, the original judgment which was invoked by the above final judgment is that the plaintiff purchased the above real estate from the owner of the above real estate on July 28, 1945, and was registered in the name of the plaintiff, and that the plaintiff obtained a decision to cancel the reversion of the above real estate, and that there was no dispute between the parties, such as the plaintiff's additional registration, and the fact that the above real estate was owned by the plaintiff on the premise of the fact that the above real estate was owned by the plaintiff, and the above non-party 1 did not introduce the above real estate to the plaintiff on the actual facts, and even though it was not known that the purchase of the above real estate had been carried out by the witness non-party 1, the plaintiff was aware that it was an important evidence to recognize that the above real estate purchase and the above real estate.

In this case, there is a ground for retrial since the false statement of the above witness constitutes a case where there is evidence in the recognition of major facts that are the grounds for the order of judgment.

Therefore, it is judged whether or not there are grounds for review.

The defendant asserts that the lawsuit of this case was unlawful since it was filed with the Do governor on August 31, 1948, which was the time limit for filing a lawsuit under Article 7 of the Decree on July 28, 1948 by the Administrator of the Gun Office. However, Article 7 of the above Decree provides the time limit for filing a lawsuit concerning a petition or lawsuit for the purpose of cancelling the reversion of the property devolving upon the property devolving upon the State, and it does not apply to the lawsuit claiming ownership against the property for which the appeal was filed within the time limit for filing a lawsuit, and the decision on cancelling the reversion of the property devolving upon the State already received. Thus, it is recognized by the plaintiff's own to legally obtain the decision on cancelling the reversion of the above real

The above real estate was registered in the name of Nonparty 2, a Japanese, on the register as of August 9, 1945. On August 28, 1945, the fact that the registration of ownership transfer was made in the name of the plaintiff on August 28, 1945, and the plaintiff was decided to cancel the reversion of the above real estate on August 9, 1948, and entered in the additional registration on March 19, 1959 by inserting the reason for the registration of ownership in the above plaintiff's name, and the plaintiff did not have any dispute between the parties that there was no confirmation by the Minister of Justice pursuant to Act No. 120 on March 19, 195, and the purport of the party's pleading was presented on July 28, 1945, the plaintiff can recognize the fact that the above real estate was purchased from Japan on July 28, 1945, and paid the registration of ownership transfer of the plaintiff's name on the above real estate, and it cannot be determined without any evidence.

As seen earlier, the Plaintiff did not obtain confirmation from the Minister of Justice pursuant to Act No. 120 on the decision on the cancellation of reversion of the above real estate, and Article 2(1) of the Act (Act on the Confirmation of the Decision on the Cancellation of Reversion by Summary Appeal Procedure) provides that the administrative measure on the cancellation of reversion, which the excessive central government administrative agency handled by summary appeal procedure, shall lose its validity without obtaining confirmation from the Minister of Justice. However, according to any of the confirmation disposition, the Plaintiff may not be deemed to result in a change in the actual right status of the above real estate purchased by Japan.

In this case, the plaintiff purchased the above real estate from Japan and completed the registration of transfer of ownership, and received the decision of the Central Government Agency's lawful cancellation of attribution. Therefore, the plaintiff's claim of this case seeking such confirmation can be justified, and the plaintiff can seek confirmation of ownership of the above real estate according to the status of the above real right without going through the period prescribed in Article 2 of the above Act. The final judgment is just and without merit, and the defendant's lawsuit of this case is dismissed and the costs of lawsuit are assessed against the losing party. It is so decided as per Disposition.

[Attachment List omitted]

Judges Lee Jin-jin (Presiding Judge)