Where “when it is impossible to make a final judgment of conviction other than the defects of evidence” in Article 422(2) of the Civil Procedure Act

In case where a witness is indicted for perjury and cannot make a final judgment of conviction for reasons other than the defects of evidence during trial, and where a prosecutor disposes of a case subject to perjury for reasons other than the defects of evidence during the investigation, he/she may file a lawsuit for retrial.

Article 422(2) of the Civil Procedure Act

Plaintiff

Defendant 1 and one other

Seoul High Court Decision 65Na5 delivered on December 28, 1965, decided December 28, 1965

The appeal is dismissed.

The costs of appeal shall be borne by the plaintiff.

Plaintiff 1’s ground of appeal No. 1

Although the reasoning of the judgment in the original judgment is insufficient, if the original judgment comprehensively examined the whole purport of the original judgment and each evidence cited by the original judgment, it can be seen that the non-party 1 took an oath as a witness at the original judgment on October 10, 1962 in the previous lawsuit, and stated the false fact that 500,000 won refund borrowed from the defendant 1 stated the false fact that there was no promise to pay in kind for payment in kind with regard to the above 500,000 won refund obligation, and only when the final judgment cannot be rendered due to reasons other than the lack of evidence under Article 422(2) of the Civil Procedure Act, a retrial suit may be instituted against the witness for reasons other than the lack of evidence under Article 422(2) of the Civil Procedure Act. In addition, the case where the witness was indicted for perjury and the public prosecutor took a non-prosecution disposition on account of reasons other than the lack of evidence during the investigation of the above evidence, which also includes the case where the prosecutor took a non-prosecution disposition on account of the witness.

The second ground of appeal No. 2

Even if we examine the original judgment by comparing the records, we cannot find that there was an error of logical rules or rule of experience in the process and contents of the testimony of evidence and the fact-finding in the original judgment. Next, since both the promise of accord and satisfaction between the defendant Lee Young-chul and the registration of transfer of real estate ownership in the name of the defendant Lee Jong-soo was made before the enforcement of the current Civil Code, it cannot be deemed null and void under Article 606 and Article 607 of the current Civil Code, which was newly established in the current Civil Code, and there is no contradiction in the reasoning of the original judgment. Therefore, all arguments are groundless.

Therefore, the appeal is dismissed without merit. The costs of lawsuit are assessed against the losing party. It is so decided as per Disposition by all participating judges.

Supreme Court Judge Madung (Presiding Judge) Kim Gung-bun and Madlebro