[1] Whether a lawsuit for retrial against a final and conclusive judgment can be brought (affirmative)

[2] Where the judgment of the previous retrial court which recognized the grounds for a retrial on the original final judgment in a lawsuit seeking a retrial on a new judgment that revoked the original final judgment, has the grounds for a retrial, and where the original final judgment is not recognized as a grounds for a retrial as a result of a retrial on the previous retrial, whether a court may take measures to be taken, and in such a case, hold a new trial and trial on the merits of the final

[1] Article 451(1) of the Civil Procedure Act provides that a lawsuit for retrial may be instituted against “a final judgment finalized”. Since a final judgment established in a lawsuit for retrial constitutes “a final judgment finalized” as referred to in the said provision, a lawsuit for retrial against a final judgment established in a final judgment may be instituted when there exists a ground for retrial as stipulated in the said provision on a final judgment.

[2] Article 454(1) of the Civil Procedure Act provides, “The trial and trial on whether a lawsuit for a retrial is legitimate, and whether there is a ground for a retrial may be implemented first of all separately from the trial and trial on the merits.” Article 459(1) of the Civil Procedure Act provides, “The pleadings and trial on the merits shall be within the scope of the grounds for a retrial.” In a lawsuit for retrial on a final and conclusive judgment, the deliberation on the merits recognized that there is a ground for a retrial in a new judgment refers to the resumption of arguments on the previous retrial, which is a previous lawsuit, that return to the state prior to the new judgment. Therefore, in a lawsuit for retrial on a new judgment on the original final and conclusive judgment that revoked a final and conclusive judgment, there is a ground for a retrial in the judgment on the previous new judgment that recognized a ground for a retrial on the final and conclusive judgment on the original final and conclusive judgment, the new judgment shall be revoked and dismissed, and in such a case, no new trial and trial on the merits of the final and conclusive judgment that

[1] Article 451(1) of the Civil Procedure Act / [2] Articles 451(1), 454(1), and 459(1) of the Civil Procedure Act

See Attached List of Plaintiffs (Attorney Kim Jong-jin et al., Counsel for the plaintiff-appellant)

Republic of Korea (Law Firm Yangyang et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2012Jinna99 decided January 25, 2013

All appeals are dismissed. The costs of appeal are assessed against Defendant (Re-Defendant).

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. A. Article 451(1) of the Civil Procedure Act provides that a lawsuit for retrial may be filed against “a final judgment which has become final and conclusive”. Thus, since a final and conclusive judgment in a lawsuit for retrial constitutes “a final and conclusive judgment” as referred to in the above provision, a lawsuit for retrial on a final and conclusive judgment may be brought against a final and conclusive judgment if there is a ground for retrial as prescribed

Meanwhile, Article 454(1) of the Civil Procedure Act provides that “The trial and trial on the merits shall be conducted first of all as to whether a lawsuit for a retrial is legitimate, and whether there exists a ground for retrial, and the trial on the merits shall be conducted within the scope of the grounds for a retrial.” Article 459(1) of the Civil Procedure Act provides that “The pleading and trial on the merits shall be conducted within the scope of the grounds for a retrial.” In a lawsuit on a retrial on a final and conclusive judgment, the trial on the merits recognized that there is a ground for retrial in the litigation on the new judgment refers to the resumption and continuation of pleadings on the previous retrial, which is the previous litigation, that return to the state prior to the new judgment. Therefore, in a lawsuit on a retrial on a new judgment on the revocation of the original final and conclusive judgment, there is a ground for a retrial in the judgment on the original final and conclusive judgment on the new judgment, and if it is not recognized that the final and conclusive judgment on the original final and conclusive judgment on the grounds for a retrial is not established, the new

B. Article 451(1)8 of the Civil Procedure Act provides that “When a judgment or any other judgment or administrative disposition, which forms the basis of a judgment, has been altered by a different judgment or administrative disposition,” the grounds for retrial include not only cases where the judgment, which forms the basis of a judgment, legally binding force but also cases where the contents of a judgment, became materials for fact-finding in a final and conclusive judgment and it is likely to affect the fact-finding of a final and conclusive judgment (see Supreme Court Decision 94Da20570, May 31, 1996, etc.).

Meanwhile, Article 422(1)6 of the former Civil Procedure Act (amended by Act No. 4201, Jan. 13, 1990; hereinafter “former Civil Procedure Act”) provides that “when a document or any other article used as evidence of a judgment has been forged or altered, a retrial may be instituted only when a judgment of conviction or a judgment of a fine for negligence has become final and conclusive, or when a final and conclusive judgment of conviction or a fine for negligence cannot be rendered for reasons other than lack of evidence in the case of subparagraphs 4 through 7 of the preceding paragraph” (Article 422(2) of the same Act provides that “when a document used as evidence of the judgment has been forged or altered as grounds for retrial, a retrial can not be rendered due to the completion of the statute of limitations, etc. for reasons other than lack of evidence, and if there is no final and conclusive judgment of conviction or alteration without the ground for retrial, a requester for retrial may prove that the final and conclusive judgment of conviction could not be made due to forgery or alteration (see, e.g., Supreme Court Decision 2846Nu.

2. After finding facts as stated in its adopted evidence, the lower court: (a) determined that there was a ground for retrial under Article 422(2) and (1)6 of the former Civil Procedure Act in Seoul High Court Decision 65Na1798 (hereinafter “Seoul High Court Decision 65Na1798”) on June 3, 196, which was the final judgment; and (b) determined that there was a non-prosecution disposition on the ground of the expiration of the statute of limitations in the case where false public documents were prepared as evidence of the Seoul High Court (hereinafter “Seoul High Court 65Na1798”); and (c) based on the facts that the Defendants of the relevant criminal cases were convicted, if the statute of limitations has not expired, it would have been confirmed that there was a final judgment on the facts against which the aforementioned false documents were prepared, and thus, (d) determined that there was a ground for retrial under Article 422(1) and (1)6 of the former Civil Procedure Act, which became final and conclusive, or that the Defendant’s new judgment on the grounds for retrial was dismissed under Article 168585(65) of the final judgment.

Upon examining the records in light of the aforementioned legal principles, the above determination by the court below is just and acceptable. In so doing, the court below did not err by misapprehending the legal principles as to the deliberation and trial of a new trial on the established new judgment, omitting judgment, or by misapprehending the legal principles as to the base point of time for determining the original final judgment, which is the original judgment subject to new trial, or by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules in relation to the recognition of grounds for new trial under Article 451(1)8

3. Conclusion

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.

[Attachment] List of Plaintiffs (Re-Appellants): omitted

Justices Ko Young-han (Presiding Justice)