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1. The lawsuit of this case shall be dismissed.
2. The costs of retrial shall be borne by the Defendant (Counterclaim Plaintiff, or Plaintiff for retrial).
Reasons
1. Following the confirmation of the judgment subject to a retrial is recognized as a substantial fact or based on records in this court.
A. On July 23, 2013, the Plaintiff filed a lawsuit against the Defendant and B regarding a loan case with the Daegu District Court 2013Kadan37484, and the said court accepted the Plaintiff’s claim against B on May 30, 2014, and rendered a judgment dismissing the Defendant’s claim against the Defendant (hereinafter “the first instance judgment”).
B. Accordingly, among the judgment of the first instance court on July 2, 2014, the Plaintiff appealed with the Daegu District Court 2014Na10661 as to the part against the Plaintiff. On October 20, 2014, the Defendant filed a counterclaim, such as the written claim for the said counterclaim, with the same court 2014Na17501. On August 26, 2015, the said court rendered a judgment that partially accepted the Plaintiff’s appeal and dismissed the Defendant’s counterclaim (hereinafter “the subject judgment for reexamination”).
C. Accordingly, the Defendant appealed by Supreme Court Decision 2015Da58761, 2015Da58778 (Counterclaim), but the said court rendered a judgment dismissing the Defendant’s final appeal on January 14, 2016, which became final and conclusive as it became final and conclusive.
2. Grounds for retrial and determination
A. The Defendant’s assertion that the Plaintiff received the amount indicated in the receipt from the Defendant for 58 months, and that KRW 50 million out of KRW 140 million that the Plaintiff received reimbursement from B was withdrawn from the Defendant’s non-fund passbook and deposited into the Plaintiff in the name of B. The Plaintiff created a loan claim against the Defendant based on the money embezzled from the Defendant. As such, there are grounds for retrial under Article 451(1)5, 6, 7, and 9 of the Civil Procedure Act in the judgment subject to a retrial.
B. Article 451(2) of the Civil Procedure Act that determined the grounds for a retrial under Article 451(1)5 through 7 of the judgment on the grounds for a retrial becomes final and conclusive.