The meaning of the means of attack and defense as prescribed by Article 149 of the Civil Procedure Act, and the standard for determining whether such attack and defense is a means of attack and defense

The means of attack and defense stipulated in Article 149 of the Civil Procedure Act refers to either an attack or defense that may delay the conclusion of a lawsuit by either party by making an adequate time after the lapse of the pertinent time pursuant to the degree of litigation intentionally or by gross negligence. Determination of whether a new means of attack and defense was made after the lapse of the pertinent time ought to take into account whether a new method of attack and defense was not made even though there were objective circumstances under which the parties could have anticipated the submission of the past in light of the degree of the progress of litigation, and whether a new method of attack and defense was granted trust that the other party and the court would not submit a new method of attack and defense. Furthermore, determination of whether a new method of attack and defense was delayed not only in an appellate court but also in the first instance court, barring any special circumstances, shall also be made by comprehensively taking into account the legal knowledge of the parties concerned, such as the type and content of new method of attack and defense, the difficulty of legal composition, the relationship between the existing method of attack and defense,

Article 149 of the Civil Procedure Act

Plaintiff

Jeonju Macton Macton Balkin

Jeonju District Court Decision 2016Na1024 decided December 15, 2016

The judgment below is reversed, and the case is remanded to the Jeonju District Court.

The grounds of appeal are examined.

1. The reasoning of the lower judgment and the record reveal the following.

A. On April 17, 2015, the Plaintiff purchased the instant real estate from the Defendant for KRW 82,350,000,000 from the purchase price, and paid KRW 20,2350,000 as the down payment on the same day, and entered into a sales contract to pay the remainder of KRW 6,2350,000 on July 17, 2015. At the time, the Defendant: (a) conducted a current status survey on the instant real estate at his/her own expense; (b) was to transfer the entire cemetery located on the instant real estate until the remainder of the cemetery; and (c) was to be paid the balance after deducting KRW 3 million per cemetery from the purchase price, instead of registering the transfer of ownership, if the Plaintiff is unable to move to another cemetery, other than a clan cemetery.

B. Following the survey conducted around July 2015, the Defendant: (a) increased the area of the instant real estate more than that stipulated in the sales contract; and (b) decided that only some of the instant real estate shares will be transferred on the ground that it cannot be removed within three months from the date of the sales contract. On July 17, 2015, the Plaintiff deposited the remainder under the instant sales contract; and (c) filed the instant lawsuit against the Defendant on July 23, 2015 against the Defendant for the implementation of the procedure for ownership transfer registration under the instant sales contract and the payment of money for breach of the special terms and conditions stipulated in the instant sales contract. Accordingly, the Defendant asserted that the instant sales contract was null and void as an unfair legal act.

C. On September 16, 2015, the first instance court concluded the pleadings after the date for the first pleading on October 21, 2015, the second date for the second pleading on November 21, 2015, and the third date for the third pleading on November 18, 2015, and concluded the pleadings on January 20, 2016 following the first instance court’s ruling on January 20, 2016, the evidence submitted by the Defendant alone is insufficient to recognize that the instant sales contract has a significant imbalance between the payment and the consideration, and that the Plaintiff was made by using the Defendant’s old-age, rashness, orless experience, and that there is no other evidence to acknowledge this. The lower court rejected the Plaintiff’s claims.

D. After that, the Defendant appealed against the judgment of the first instance on March 7, 2016, and added the claim that the instant sales contract is null and void because it did not go through legitimate procedures, such as a clan general meeting, regarding the disposition of the property of the clan (hereinafter “instant claim”).

E. As to this, the lower court immediately referred the instant case to the conciliation, and on September 20, 2016, the conciliation was not concluded on the date of conciliation, and on November 24, 2016, opened a date for first pleading and opened a petition of appeal and the statement of grounds of appeal on March 7, 2016, notified the Defendant of the decision to dismiss the Defendant’s assertion as a means of attack and defense during the real time period, and sentenced the Defendant to a ruling on December 15, 2016, after closing the pleadings.

2. However, it is difficult for the lower court to accept such measures for the following reasons.

A. The means of attack and defense stipulated under Article 149 of the Civil Procedure Act refers to either an attack or defense that may delay the conclusion of a lawsuit by either party by making an adequate time after intentionally or by gross negligence beyond the pertinent time pursuant to the degree of litigation. Determination of whether a new means of attack and defense was made late after the lapse of an appropriate time ought to take into account whether a new method of attack and defense was not made even though there were objective circumstances that the parties could have anticipated to submit in the past in light of the degree of the progress of litigation, and whether a new method of attack and defense was granted trust that the other party and the court would not submit a new method of attack and defense. Furthermore, determination of whether a party’s intention or gross negligence was delayed not only the appellate court but also the first instance court should take into account the legal knowledge and knowledge of the parties, the type and content of a new method of attack and defense, degree of legal composition, relationship between the existing method of attack and defense, progress of litigation, etc.

B. In light of the following circumstances acknowledged by the reasoning of the lower judgment and the record, it is difficult to readily conclude that the Defendant’s assertion of this case constitutes a means of attack and defense against the actual time limit, or that there was an intentional or gross negligence in failing to submit the allegation of this case at an appropriate time. (1) Upon the pronouncement of the first instance judgment, the Defendant filed an appeal in the appellate brief and asserted in the appellate brief immediately. (2) If the allegation of this case is acknowledged as factually, it constitutes an attack and defense method that may be invalidated in the instant sales contract. Although the first instance court, which was proceeding for about six months, did not assert the Defendant’s assertion in the instant case, but had already been asserted before the first day of pleading of the lower court, it cannot be readily concluded that the lower court further requires a long-term

Nevertheless, the lower court rejected the Defendant’s instant assertion on the ground that it constituted an actual-time attack and defense method. In so doing, the lower court erred by misapprehending the legal doctrine on the actual-time attack and defense method, thereby adversely affecting the conclusion of the judgment.

3. The defendant's appeal is with merit without examining the remaining grounds of appeal, and the judgment below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Poe-young (Presiding Justice)