The meaning of “when the false statement of a witness becomes evidence of a judgment” as grounds for retrial under Article 451(1)7 of the Civil Procedure Act

Article 451(1)7 of the Civil Procedure Act

Supreme Court Decision 2012Da202307 Decided April 10, 2014

Plaintiff (Counterclaim Defendant, Appellee Defendant) (Law Firm Chungcheong, Attorney Jin-do et al., Counsel for the plaintiff-appellant)

Joint metion Co., Ltd. (Law Firm Barun, Attorneys Kim Young-hoon et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2012Na 1351, 1368 decided June 13, 2013

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. The judgment of the court below

A. Determination of the original judgment

On July 8, 2005, the Plaintiff filed a lawsuit against the Defendant seeking the cost of repair of machinery with Seoul Southern District Court 2005Gahap10945 (main claim). The Defendant filed a lawsuit seeking damages with the same court 2005Gahap20409 (Counterclaim). On November 3, 2006, the same court dismissed the Plaintiff’s claim on the main claim and declared a judgment citing the Defendant’s counterclaim (hereinafter “the first judgment”).

On January 16, 2009, the first instance judgment was revoked, most of the plaintiff's claims were accepted, and the judgment dismissing the defendant's counterclaim claim (hereinafter "the judgment on review") was rendered on May 14, 2009. The Supreme Court dismissed the defendant's appeal on May 14, 2009, thereby becoming final and conclusive.

In the judgment subject to a retrial, the Plaintiff asserted that the repair price was KRW 120 million (excluding value-added tax), and the Defendant asserted that the repair price was KRW 20 million (excluding value-added tax). The court determined that the repair price was KRW 120 million based on the witness Nonparty 1’s testimony, etc.

B. Judgment of perjury by Nonparty 1

On October 19, 2012, the Incheon District Court sentenced the non-party 1 to the witness on October 2012, 2012, on the ground that the non-party 1 testified to the defendant by facsimile that the plaintiff, including the technical service cost of KRW 120 million on June 10, 2005, stated a written estimate in which the sum of KRW 120 million was sent to the defendant by facsimile, and that the plaintiff instigated the above certificate, was sentenced to 8 months of imprisonment and 10 months of imprisonment for the reason that the plaintiff instigated the above certificate, which became final and conclusive around that time.

C. Defendant’s request for retrial and judgment of the court below

As a ground for retrial of this case, the Defendant asserted that there exists a ground for retrial falling under Article 451(1)7 of the Civil Procedure Act in the judgment subject to retrial, since the judgment subject to retrial became final and conclusive for perjury against Nonparty 1 as a witness.

The lower court dismissed the Defendant’s request for retrial on the ground that the Defendant’s assertion does not constitute a ground for retrial under Article 451(1)7 of the Civil Procedure Act, on the ground that, although the conviction of perjury against Nonparty 1’s statement, which was adopted as evidence by the judgment subject to retrial, has become final and conclusive, it would have reached the same conclusion as recognized by the judgment subject to retrial based on other evidence than the false statement.

2. Judgment of the Supreme Court

A. The grounds for retrial under Article 451(1)7 of the Civil Procedure Act, “when the false statement of a witness becomes evidence of the judgment” refers to the case where the false statement is provided as direct or indirect materials for fact-finding affecting the text of the judgment, and it is probable that if the false statement had not been made, the text of the judgment may vary (see, e.g., Supreme Court Decision 2012Da202307, Apr. 10, 2014).

B. Review of the reasoning of the lower judgment and the record reveals the following circumstances.

1) The instant machinery (the steel network manufacturing machinery, name, eXPD MES M/C size: 6T x 200 L) was first used by the Plaintiff and sold to the Defendant on January 20, 2002. The sales price at the time was KRW 120 million.

2) On June 1, 2005, while using the instant machine, the Defendant requested repair to the Plaintiff on June 1, 2005, and the Plaintiff did not prepare a written contract concerning specific terms and conditions of the contract, such as the repair cost at the time. The Plaintiff completed repair on June 17, 2005, and the Defendant paid 22 million won to the Plaintiff on June 18, 2005. However, the Plaintiff asserted that the repair cost is KRW 120 million, while the repair cost was unpaid.

3) In the judgment subject to a retrial, the judgment determined that the contract was concluded with the amount of KRW 120 million for the repair cost of the instant machinery. The grounds are as follows: (i) the Plaintiff sent a written estimate in which the repair cost was KRW 120 million to the Defendant by facsimile; (ii) the Plaintiff said that the Plaintiff paid the repair cost of KRW 120 million to the Defendant’s former Nonparty 2 and the factory president Nonparty 3; and (iii) the result of Nonparty 4’s appraisal of repair cost and the appraisal of the Korean Appraisal Board for the instant machinery.

4) First of all, in a written estimate that meets the facts, ① the Plaintiff’s seal is affixed to the written estimate that is consistent with the facts, and there is no indication that the Defendant received it, and the fact that the transmission document is not sufficient to prove the fact that the documents are the written estimate, Nonparty 1’s testimony was an important evidence to acknowledge that “the Plaintiff sent the written estimate to the Defendant by facsimile” was a contract with the acceptance price of KRW 120 million. However, as such testimony of Nonparty 1 was revealed in the criminal judgment, it cannot be believed that “the Plaintiff sent the written estimate that the repair price of the Defendant was KRW 120 million to the Defendant by facsimile.”

5) Next, finding the facts in the judgment subject to a retrial is that: (a) Nonparty 5’s statement that “the Plaintiff told Nonparty 2 and Nonparty 3 that the Defendant had set the repair cost of the instant machinery at KRW 120 million.” However, Nonparty 5, as an employee employed by the Plaintiff, did not have any other objective data, and it is difficult to readily conclude that the content of the statement is true or correct; and (b) it cannot be readily concluded that Nonparty 5 entered into a contract with the Defendant for the repair of the machinery with the said content (the third party in the criminal case against the Plaintiff, who was a third party in the relevant criminal case against the Plaintiff, stated that there was little statement from the Plaintiff that Nonparty 6 claimed that the repair cost was KRW 120 million.

6) Machines repair business entities, such as curative construction works, solar throthes, and ice ethyl, calculated the repair cost of the instant machinery as KRW 9,520,00,29,896,550, and KRW 16,828,600, respectively. The technical service cost claimed by the Plaintiff that most of the instant mechanical repair cost accounts for KRW 100,000,000, is excessive in light of not only the substance itself, but also the repair cost, excluding the instant mechanical repair cost and the aforementioned technical service cost. It is difficult to view that the Defendant accepted the instant mechanical repair cost without any objection even though the Plaintiff alleged that the technical service cost was included in the repair cost. If deemed that the technical service cost was included in the repair cost, it would have consulted between the parties on specific matters, such as the content and scope of the service, period, and liability for compensation in the event of defects.

7) In this regard, there are circumstances under which it is difficult to believe the result of Nonparty 4’s appraisal of repair costs and the result of the appraisal of the Korean Appraisal Board as it is, and the conclusion of a contract for repair costs should be reasonably determined by reasonably considering various circumstances, such as the parties’ intentions at the time, and the contents of the contract for repair costs cannot be the only standard for repair costs calculated as a result of appraisal.

C. The issue is whether the Plaintiff entered into a contract to entrust the Defendant with the repair cost of the instant machinery as KRW 120 million. The case subject to reexamination was the case where the Plaintiff ought to determine whether the alleged facts conform to the logical and empirical rules through indirect facts, considering the whole and after the circumstances surrounding the repair of the instant machinery, under the absence of the contract.

In light of the fact that the defendant asserted that he was unable to receive a written estimate from the plaintiff, "the plaintiff sent a written estimate stating 120 million won to the defendant by facsimile" as to the testimony of the non-party 1, the conviction of perjury has become final and conclusive, and that the above testimony was the main evidence of the decision subject to a retrial rejecting the defendant's assertion, even if considering other evidence, it is probable that it would have made a judgment different from the above judgment if there was no perjury.

Therefore, Nonparty 1’s testimony was affected by the text of the judgment subject to retrial. However, the lower court rejected Nonparty 1’s request for retrial on the ground that Nonparty 1’s perjury does not constitute grounds for retrial, and did not make a decision on the legitimacy of the merits of the merits, thereby failing to exhaust all necessary deliberations by misapprehending the legal doctrine on

3. Conclusion

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Yong-deok (Presiding Justice)