[1] Whether a ground for retrial can be considered as a ground for retrial against the Supreme Court's decision that was rejected due to a lack of judgment (negative)

[2] The point of time to view that the existence of the grounds for a retrial, which is a deviation from a judgment, was known in a lawsuit seeking a retrial on the grounds of a deviation

[1] Article 451 (1) 9 of the Civil Procedure Act, Article 4 of the Act on Special Cases Concerning the Procedure for Appeal in the Supreme Court / [2] Articles 451 (1) 9 and 456 of the Civil Procedure Act

[1] Supreme Court Decision 95Nu176 delivered on February 13, 1996 (Gong1996Sang, 1002) Supreme Court Decision 96Da479 delivered on May 7, 1997 (Gong1997Sang, 1701) Supreme Court Decision 99Da357 delivered on November 9, 199 / [2] Supreme Court Decision 93Da43798 delivered on December 14, 1993 (Gong194Sang, 365)

Plaintiff

The Commissioner of the Korean Intellectual Property Office

Supreme Court Decision 2003Hu2423 Delivered on January 15, 2004

The litigation for retrial shall be dismissed. The litigation costs for retrial shall be borne by the plaintiff (the plaintiff).

The grounds for retrial shall be considered.

The gist of the grounds for retrial asserted by the Plaintiff (hereinafter “Plaintiff”) is that there was an error of incomplete deliberation and omission of judgment in the judgment subject to retrial, even though the Korean Intellectual Property Office made a wrong determination of the cited proposal and intentionally made a false proposal step-by-step, the Plaintiff’s appeal was dismissed in the judgment subject to retrial.

However, the grounds of appeal are no longer deemed to fall under the grounds of appeal under the Act on Special Cases Concerning the Procedure for Appeal, and the judgment dismissing a final appeal without further deliberation, and there is no ground of appeal as to the grounds of appeal. Thus, this cannot be viewed as the grounds of appeal under Article 451 (1) 9 of the Civil Procedure Act (see Supreme Court Decisions 95Nu176 delivered on February 13, 1996, 9Da357 delivered on November 9, 199, etc.).

In addition, the existence of the grounds for a retrial, i.e., a ground for a retrial, can be seen by read the original copy of the judgment subject to a retrial, unless there is a special ground. Thus, unless there is any proof as to the grounds for a retrial, it is reasonable to view that the parties were aware of the existence of the grounds for a retrial at the time when they were served with the original copy of the judgment subject to a retrial (see Supreme Court Decision 93Da43798, Dec. 14, 1993, etc.). In this case, the mere fact that the Plaintiff failed to grasp the grounds for a retrial or that a transitional period has occurred to secure evidence that could confirm the grounds for a retrial, cannot be the grounds for a retrial, and it is reasonable to view that the Plaintiff was aware of the existence of the grounds for a retrial on January 19, 2004, on which the original copy of the judgment was served on the grounds for a retrial on which 30 days elapsed, and that the lawsuit for a retrial was filed on February 21, 2006.

Therefore, the suit of this case is dismissed as it is unlawful, and the costs of the lawsuit are borne by the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Nung-hwan (Presiding Justice)