Whether Article 422(1)7 of the Civil Procedure Act applies where a protocol of examination of a witness was adopted as a documentary evidence in a case subject to review.

When a false statement of a witness under Article 422(1)7 of the Civil Procedure Act is proved by evidence of a judgment, means the case where the witness directly makes a false statement in the court which examines the litigation case that becomes the object of the retrial.

Article 422(1)7 of the Civil Procedure Act

66Da1203 delivered on September 20, 1966

Plaintiff (Re-Defendant) 1 and four others

Defendant (Re-Appellant) 1 and one other, Counsel for the defendant-appellant

Seoul High Court Decision 74Na11 delivered on February 25, 1977

All appeals are dismissed. The costs of appeal are assessed against the defendant (Appellant).

The defendants' attorney's first ground of appeal is examined.

According to the reasoning of the judgment of the court below, the final judgment of the court below, which is the object of the retrial, adopted as evidence a criminal judgment of the court of first instance against the defendant 2's assertion in its fact-finding, but this judgment was reversed in the appellate court and the judgment of the court of appeal became final and conclusive, and thus, it is recognized that the above final judgment constitutes grounds for retrial under Article 422 (1) 8 of the Civil Procedure Act, since it is likely to affect its conclusion, it constitutes grounds for retrial under Article 422 (1) 8 of the same Act, and further, the final judgment of the court below, excluding the above final judgment of the court of first instance after examining the merits, shall not interfere with the final judgment of the court of first instance, and it shall not affect the final judgment of the court of first instance which becomes the object of retrial, since the above criminal judgment became final and conclusive after the judgment of the court of first instance, and therefore, it is judged that there is no reason for the request for retrial based on the change of the above final judgment of the court of first instance.

The second ground of appeal is examined.

When the false statement of a witness under Article 422 (1) 7 of the Civil Procedure Act is proved by evidence, it is reasonable that the witness makes a false statement in a court where the witness directly examines the litigation case that became the object of retrial, and that the witness does not include the case where the witness makes a false statement as a witness in a case other than the litigation case that became the object of retrial and submitted a false statement as a documentary evidence in the judgment that became the object of retrial (see Supreme Court Decision 66Da1203 delivered on September 20, 1966). Thus, even though the original trial was adopted as a result of verification in the final and conclusive judgment that became the object of perjury as a result of examination in the final and conclusive judgment that became the object of perjury and the witness has received a final and conclusive judgment of conviction as a result of perjury, it is justifiable in the judgment that it does not constitute a ground for retrial under Article 422 (1) 7 of the Civil Procedure Act and there is no error in the misapprehension of legal principles of the same Act.

Therefore, all 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 on the bench.

Justices Lee Young-young (Presiding Justice)