Audio (Attorney Yoon Young-young et al., Counsel for the defendant-appellant)

Gangnam-ro (Attorney Kim Young-ho, Counsel for defendant-appellant)

Seoul District Court Decision 87Gahap1258 delivered on March 16, 1988

Seoul High Court Decision 88Na16190 delivered on October 27, 1989

1. The request for retrial of this case is dismissed.

2. The costs of retrial shall be borne by the defendant.

The judgment subject to a retrial shall be revoked. The appeal by the plaintiff (the defendant for a retrial, and the plaintiff) shall be dismissed. The costs of the principal lawsuit and the retrial shall be borne by the plaintiff.

The judgment of the court of first instance is revoked. The defendant (hereinafter only referred to as the plaintiff for retrial and the defendant) will implement the procedure for the registration of ownership transfer due to sale on June 3, 1978 with respect to the building listed in the attached Table 1, 5,199.3 shares in the attached Table 1 and the building listed in the attached Table 2. All costs of the lawsuit shall be borne by the defendant.

1. Comprehensively taking account of the whole purport of the pleading in the statement No. 11-2 and No. 11-3 (decisions) where there is no dispute over each establishment, the plaintiff purchased three buildings from the defendant on June 3, 1978, including buildings listed in No. 1 in the attached Table No. 1 (hereinafter "the land in this case") and the building listed in the attached Table No. 2 in the same Table No. 1 (hereinafter "the land in this case"), from the defendant on June 3, 1978, at KRW 17,50,000. However, the plaintiff asserted that the sale contract was prepared and the lot No. 29-1 in Gangnam-gu Seoul Metropolitan City, and the land category was mistakenly stated as woodland No. 1 and land category as woodland No. 300,000, not the land in this case and the commercial building in this case, but the judgment below accepted the plaintiff's claim that was dismissed on Oct. 26, 1987.

2. The Defendant, as the ground for the instant request for retrial, altered by the Plaintiff a sales contract that was admitted as evidence for the judgment subject to retrial, and the Defendant appeared as a witness in the Seoul District Court 87Gahap 1258 case, the first instance court of the case subject to retrial, the Seoul District Court 87Gahap 1258, which was the first instance court of the case subject to retrial, and the testimony was admitted as evidence of the judgment subject to retrial. As such, the Defendant asserted that there was a ground for retrial under Article 422 (1) 6 and 7 of the Civil Procedure Act, since the judgment of conviction on the alteration of the above private document and perjury

Therefore, the court below erred by misapprehending the legal principles on non-party 1's admission of evidence Nos. 12, 2, and 3 (each judgment on non-party 1) without dispute over the judgment subject to a new trial as evidence; on February 15, 1989, the court below erred by misapprehending the legal principles on non-party 2's admission of evidence No. 97, which stated that "No. 1,500,00 won was resident in the above forest and field" and "No. 1,50,000 won was added to the defendant's admission of evidence No. 9, and the defendant's admission of evidence No. 1, No. 2, and no. 1,2, and no. 1,000 evidence of non-party 1's admission of evidence No. 97, which had been issued by the court below for new trial as evidence; on the other hand, the court below erred by misapprehending the legal principles on non-party 2's admission of evidence No. 97, and rejected evidence No. 1, the defendant 2.

However, "when a document or any other article constituting a ground for retrial under Article 422 (1) 6 of the Civil Procedure Act has been forged or altered" refers to cases where a sales contract altered by the plaintiff is adopted as evidence of fact-finding that served as the basis for maintaining the order of judgment. As seen earlier, unless a sales contract that altered the contract is admitted as evidence of fact-finding, it cannot be deemed as a ground for retrial under Article 1 (1) 6 of the Civil Procedure Act because there is a final judgment of conviction as to the above sales contract. Further, "when a witness's false statement, which is a ground for retrial under Article 422 (1) 7 of the Civil Procedure Act, is admitted as evidence of fact-finding that affects the order of judgment, and if there is no false statement, it is probable that the text of the judgment would change if it had been presented as evidence of fact-finding, and thus, it is not clear that the defendant prepared a false evidence of fact-finding or prepared a false statement of fact-finding without being admitted as evidence of fact-finding (as seen earlier, the court's statement of fact-finding cannot be admitted as evidence.)

3. Therefore, the retrial of this case cannot be deemed as grounds for retrial such as Defendant’s head. Thus, the Plaintiff’s request for retrial of this case is dismissed (the Plaintiff asserted that there was no ground for retrial of this case, but the Plaintiff’s assertion on this ground is merely a legal opinion and does not separately determine it, and the Defendant’s request for retrial is dismissed) is assessed against the Defendant as the losing party.

Judges Yu Tae-tae (Presiding Judge) Kim Jong-sung re-transfer