A. Whether the party to the judgment becomes aware of the evasion of the judgment when the original copy of the judgment was served on the attorney

B. The initial date (=the date when the judgment became final) when the judgment became final and conclusive after the original copy of the judgment was served on the attorney

C. Whether a case where a judgment becomes final and conclusive due to a failure to file an appeal constitutes “when he knows and does not assert it” under the proviso of Article 422(1) of the Civil Procedure Act (affirmative)

A. When an original copy of the judgment is served on an attorney, barring any special circumstance, the attorney shall be deemed to have become aware of whether the judgment was omitted at the time of being served with the original copy of the judgment, and if the attorney knew of whether the judgment was omitted or not, the party to the lawsuit shall be deemed to have become aware of the fact, barring any special circumstance.

B. If, after the original copy of the judgment subject to a retrial was served on the attorney, the party to the lawsuit did not file a final appeal and the period for filing a final appeal expired, it is reasonable to interpret that the 30-day period for filing a final appeal as stipulated in Article 426(1) of the Civil Procedure Act should be calculated from the date on which

C. According to the proviso of Article 422(1) of the Civil Procedure Act, if a party asserts, or does not know, the grounds for retrial by an appeal, it shall not be allowed to institute a lawsuit for retrial. Here, “when the party does not know,” “when he knows,” the term “when he knows,” should be interpreted to include not only the cases where the appellate court did not assert the grounds, but also the cases where the judgment becomes final and conclusive because he did not file an appeal, despite having known,

(a) Articles 422(1)9 and 426(1)(b) of the Civil Procedure Act; Articles 422 and 426(1)(c) of the same Act; the proviso to Article 422(1) of the same Act;

A. Supreme Court Decision 88Nu24 delivered on June 28, 198 (Gong1988, 1124) 87Nu732 delivered on December 27, 198 (Gong1989, 239) 90Nu27 delivered on April 27, 1990 (Gong1990, 1189). (B) Supreme Court Decision 91Da20913 delivered on October 8, 1991 (191, 2686) 82Nu313 delivered on October 12, 1982 (Gong1982, 1109), Supreme Court Decision 90Nu8510 delivered on February 12, 191 (Gong191, 1002) 190Da1085819 delivered on May 28, 1985).

Plaintiff (Re-Appellant) 1 and one other Plaintiffs, Counsel for the plaintiff-appellant-appellee and one other, Counsel for the plaintiff-appellant-appellee

Defendant (Re-Appellant) 1 and one other Defendants (Attorney Jung-tae, Counsel for the plaintiff-appellant in charge of general law firms)

Seoul High Court Decision 91Rena32 delivered on July 3, 1991

All appeals are dismissed.

The costs of appeal shall be assessed against the plaintiff (appellant).

We examine the grounds of appeal by the plaintiffs (the plaintiff in the retrial, the plaintiff in this subsequent case) by their attorneys.

1. The court below acknowledged that there was a ground for a retrial that omitted a judgment on important matters affecting the judgment subject to a retrial, but acknowledged that the original copy of the judgment subject to a retrial was delivered to the attorney of the plaintiffs at the time of December 22, 1990. Barring special circumstances, if the original copy of the judgment was served to the attorney at the time of receiving the service of the original copy of the judgment, the attorney at the time of receiving the service of the original copy of the judgment, and unless there were special circumstances, if the attorney at the time of the rejection of the judgment, it should be deemed that the party to the lawsuit knew of the above judgment. Thus, the time period for filing a retrial on the ground that there was a ground for a ground for retrial that there was a ground for retrial of the final judgment, should be calculated from the time when the attorney at the court was served with the original copy of the judgment subject to a retrial, and as such, the plaintiffs' legal representative did not know that there was a ground for retrial as well as from December 20, 1990 to the court of appeal.

2. When an original copy of the judgment is served to an attorney, barring any special circumstance, the attorney should be deemed to have known of whether the judgment was omitted at the time of being served with the original copy of the judgment. In the event that the attorney knew of whether the judgment was omitted or not, barring any special circumstance, the party to the lawsuit should also be deemed to have become aware of the fact (see Supreme Court Decision 63Da167, Jun. 20, 1963; Supreme Court Decision 88Nu24, Jun. 28, 198; Supreme Court Decision 87Nu732, Dec. 27, 198; 90Nu27, Apr. 27, 190, etc.). The judgment of the court below with the purport is justifiable, and it is not acceptable to accept when the plaintiffs actually received the original copy of the judgment subject to the judgment and received it, and when the court below should investigate and examine ex officio whether the judgment was omitted or not.

3. However, if the original copy of the judgment subject to a retrial was delivered to the plaintiffs' attorney without filing a final appeal and the period for filing a final appeal has expired, the period for filing a new appeal for 30 days as stipulated in Article 426(1) of the Civil Procedure Act shall be calculated from the date on which the judgment subject to a new trial becomes final and conclusive (see, e.g., Supreme Court Decision 82Nu313, Oct. 12, 1982; Supreme Court Decision 90Nu8510, Feb. 12, 1991; etc.). Since the judgment subject to new trial becomes final and conclusive on January 6, 199 when the original copy of the judgment was delivered to the plaintiffs' attorney, it is clear that the lawsuit of this case raised on January 23, 1991 within the period for filing a legitimate new trial was instituted within the period for filing a new trial. Nevertheless, the court below erred in the misapprehension of legal principles as to the judgment subject to new trial after the expiration of 30 days from the date of the plaintiffs' original judgment.

4. However, according to the proviso of Article 422(1) of the Civil Procedure Act, if a party asserts or does not know the grounds for a retrial by an appeal, it shall not be allowed to institute a retrial. Here, “when the party does not know the existence of the grounds for a retrial” refers to not only the case where an appeal was filed despite having been aware of the existence of the grounds for a retrial, but also the case where the judgment becomes final and conclusive as it was due to the failure to file an appeal as in the instant case. Barring special circumstances, barring any special circumstance, it shall be deemed that the party to the lawsuit or his legal representative becomes aware of the existence of the grounds for a retrial at the time when the original copy of the judgment was served. Thus, as long as the judgment became final and conclusive as it did not file an appeal against the judgment subject to a retrial, the judgment of the court below that the plaintiffs cannot institute a retrial by pointing out the important matters affecting the judgment as the grounds for a retrial.

5. Therefore, the conclusion that the court below dismissed the lawsuit of this case on the ground that the lawsuit of this case is unlawful is not justifiable. Thus, all of the plaintiffs' appeals are dismissed and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices

Justices Yoon Jae-ho (Presiding Justice)