Whether two judgments, which conflict with one another, constitute grounds for retrial under Article 422 subparag. 10 of the Civil Procedure Act where the two judgments are similar to the case, but the parties or the causes of the claims are different (negative)

"When it conflicts with the final and conclusive judgment rendered prior to the final and conclusive judgment" in Article 422 subparagraph 10 of the Civil Procedure Act refers to the case where two final and conclusive judgments conflict with res judicata in relation to the same case between the same parties, and where the two cases are similar, if the party or the cause of the claim differs, it shall not be deemed that the case falls under such cases.

Article 422 subparag. 10 of the Civil Procedure Act

Plaintiff (Reexamination Plaintiff)

Minister of Government Administration

Supreme Court Decision 81Nu274 Delivered on September 13, 1983

The request for retrial is dismissed.

The litigation costs for retrial shall be borne by the plaintiff.

With respect to the reasons for review:

Article 422(1)1 of the Civil Procedure Act is applicable to the grounds for retrial of the Plaintiff (hereinafter “Plaintiffs”). First, the purport of the judgment subject to retrial of this case is that the original decision conflicts with the previous Supreme Court Decision 4290Da6920 Decided December 18, 1958; Supreme Court Decision 62Da288 Decided September 27, 1962; Supreme Court Decision 62Da288 Decided Sept. 27, 1962; but a panel composed of less than two thirds of the Supreme Court judges is not decided by a panel; thus, it constitutes the grounds for retrial under Article 422(1)1 of the Civil Procedure Act. Second, the judgment subject to retrial of this case constitutes the grounds for retrial under Article 422(1)1 of the Civil Procedure Act. Since the Plaintiff’s service record, which became the main cause of the disposition subject to retrial of this case, was considerably lacking in ability to perform duties by mental and physical means, it constitutes a legitimate ground for retrial of this case’s final judgment.

On the other hand, since the last four grounds for retrial of this case are not stipulated as grounds for retrial under Article 422 of the Civil Procedure Act, the part of the request for retrial of this case as grounds for retrial of this case is without merit. The remaining points are as follows: (a) the lawsuit constitutes grounds for retrial under Article 422(1)1, 9, and 10 of the Civil Procedure Act; (b) among those cases, the lawsuit for retrial based on subparagraphs 1 and 9 should be brought within a peremptory period of 30 days from the date on which the judgment became final and conclusive after becoming aware of the grounds for retrial (Article 426(1) of the same Act), and as such, if there are no special circumstances, the period for filing retrial of this case cannot be calculated from the time on which the plaintiff was served with the original copy of the judgment; and (c) the two cases cannot be deemed as grounds for retrial which conflict with those of this case before the final and conclusive judgment were served on September 23, 1983.

Ultimately, the plaintiff's grounds for retrial are all unlawful or cannot be a ground for retrial. Thus, the request for retrial of this case is dismissed. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Yong-ju (Presiding Justice)