(영문) 서울고등법원 2015.05.12 2014재나802

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(영문) 서울고등법원 2015.05.12 2014재나802

소유권확인

Text

1. The defendant (Plaintiff) shall dismiss the lawsuit for retrial of this case.

2. The costs of the review are assessed against the defendant.

Reasons

1. Fictitious facts;

A. On July 4, 2011, the Plaintiff filed a lawsuit as stated in the separate sheet against the Defendant, under the premise that each real estate listed in the separate sheet is owned by the Plaintiff, under the premise that it is owned by the Plaintiff, the Suwon District Court’s Suwon District Court KRW 201Ahap2625.

B. On January 13, 2012, the Suwon District Court, which is the legal ground of the first instance trial, declared a judgment accepting the Plaintiff’s claim on January 13, 2012, and the Defendant appealed against the above judgment, but this court rendered a judgment subject to a retrial dismissing the Defendant’s appeal on November 23, 2012.

C. On December 12, 2012, the Defendant appealed to Supreme Court Decision 2013Da10444 regarding a judgment subject to a retrial, but was notified by the Supreme Court on April 25, 2013, and the judgment subject to a retrial became final and conclusive on April 29, 2013.

2. According to the purport of the en banc Decision en banc Decision 2004Da37775 Decided April 20, 2006, the Defendant’s assertion that the judgment subject to a retrial by the Defendant was a separate church that lost its identity with I and that the Defendant is a church having the identity with I.

Therefore, there is a ground for retrial under Article 451(1)9 of the Civil Procedure Act that “when a judgment on important matters that may affect a judgment is omitted”.

3. On the other hand, a lawsuit for retrial shall be instituted within 30 days from the date the party concerned becomes final and conclusive and the grounds for retrial become known (Article 456(1) of the Civil Procedure Act), and barring any special circumstance, if the original of the judgment is served on the attorney, the attorney shall be deemed to have become aware of whether the judgment was omitted at the time when the original of the judgment was served. In a case where the attorney becomes aware of whether the judgment was omitted or not, barring any special circumstance, the party concerned in the lawsuit shall be deemed to have become aware of the fact, barring any special circumstance. Thus, unless there is any assertion as to the special group’s grounds, unless the party concerned

참조조문

-민사소송법 제451조 제1항 제9호

-민사소송법 제456조 제1항

유사 판례

-서울고등법원 2015.07.22 2015재나465

-서울고등법원 2015.01.09 2014재누77

-대법원 1991. 11. 12. 선고 91다29057 판결

-인천지방법원 2015.04.29 2014재가단90

-대법원 1984. 2. 28. 선고 84무3 판결