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1. The plaintiff's petition for retrial is dismissed.
2. The costs of retrial shall be borne by the plaintiff.
Reasons
1. The plaintiff, who became final and conclusive in the judgment subject to a retrial, filed a lawsuit claiming damages against the defendant on July 2, 2009 by Jinwon District Court Branch Decision 2008Gadan21279, which became final and conclusive. The plaintiff appealed as Busan High Court Decision 2009Na11273 on December 3, 2009. The above court rendered a judgment dismissing the appeal on December 3, 2009 (hereinafter "the judgment subject to a retrial"). The original judgment subject to a retrial was delivered to the plaintiff on December 7, 2009 but the plaintiff did not file a final appeal against it, and the above judgment becomes final and conclusive as of December 22, 2009 is clear in records.
2. The plaintiff asserts that the judgment subject to a retrial has a ground for retrial under Article 451(1)3 of the Civil Procedure Act, since the plaintiff had no legal representative or legal representative, even though he/she had the capacity to act on behalf of the plaintiff due to a traffic accident on October 7, 2007.
In order to constitute “when there is any defect in granting a legal representation right, powers of attorney, or authority required for conducting the procedural acts by a representative,” which is a cause for a retrial under Article 451(1)3 of the Civil Procedure Act, a case where a person or his/her legal representative was unable to conduct a substantive procedural acts on behalf of himself/herself or to conduct a substantive procedural acts due to a defect in his/her power of attorney.
(see, e.g., Supreme Court Decisions 92Da259, Dec. 22, 1992; 2005Da10470, Jul. 12, 2007). In addition, in a case where the defect of the power of attorney in a litigation is asserted as a cause for a retrial, the burden of proof exists against the plaintiff who asserts the defect as a cause for a retrial.
(see, e.g., Supreme Court Decision 99Da14822, Sept. 7, 199). However, there is no evidence to deem that the Plaintiff had the capacity to perform the duties at the time of the process of the judgment subject to a retrial.