(영문) 대전고등법원 2020.6.11.선고 2019재나49 판결

1. Among the lawsuits for retrial of this case, the part concerning the grounds for retrial under Article 451(1)5 through 7, and 9 of the Civil Procedure Act shall be dismissed.

2. Of the instant petition for retrial, I dismiss each of the grounds for retrial under Article 451(1)8 and 10 of the Civil Procedure Act.

3. The plaintiff (Plaintiff) shall bear the costs of retrial.

Purport of appeal and review of claim

1. Purport of claim and appeal

The judgment of the court of first instance is modified as follows. The defendant (the defendant 2) shall jointly and severally pay to the plaintiff (the plaintiff 2) 4,00,000 annual interest rate of 0.0% for 20% per annum from 0.0% to 30% per annum for the above 20.0% of annual interest rate of 0.0% for the plaintiff, 20% per annum for each of the above 20.0% of annual interest rate of 0.0% for the plaintiff, 6% of annual interest rate of 0.0 per annum for the plaintiff 20.0, 6% of annual interest rate of 0.0,000 per annum for the above 20,000, 6% of annual interest rate of 9,000 per annum for the defendant 20,000, 6% of annual interest rate of 9,000 per annum for each of the above 20,000,000 won for the defendant 20,005.

2. Purport of request for retrial;

The original judgment and the first instance judgment shall be revoked. The defendants shall pay to the plaintiff 2,062,200 won with 9% interest per annum from 205, 12.2 to 200, and 20% interest per annum from the next day to the day of complete payment. The defendants shall return to the plaintiff bonds equivalent to 22,062,200 won with 222,062,200 won and 20% interest per annum from the next day to the day of complete payment. The defendants shall jointly and severally pay to the plaintiff 5,50,000 won with 20% interest per annum from 60% interest per annum to the day of complete payment, 9% interest per annum from 60% interest per annum to 20% interest per annum, 20% interest per annum from the next day to 60% interest per annum, 20% interest per annum to the plaintiff, and 20% interest per annum from 60% interest per annum to 20% interest per annum.

Reasons

1. Determination of the judgment subject to retrial;

The following facts shall be apparent in the records or obvious to this court:

A. On August 14, 2012, the Plaintiff filed a lawsuit against the Defendants and E seeking cancellation of the right to collateral security, etc. with Daejeon District Court Branch Branch Decision 2010Kahap4427, and the said court dismissed the Defendants’ primary claim against the Defendants, the part of the claim for cancellation of the registration of the right to collateral security, the part of the claim for cancellation of the registration of the right to voluntary decision on commencement of auction and the cancellation of the registration of provisional seizure against the Defendants B and E, the part of the claim for cancellation of the registration of the right to collateral security, and the part of the claim for the registration of the right

B. On January 21, 2014, the Plaintiff appealed to this Court as 2012Na5962, but this Court dismissed all the claims and preliminary claims against Defendant B, except for the claim for cancellation of the registration of the establishment of a mortgage and the claim for cancellation of the registration of the decision of voluntary commencement of auction, among the primary claims against the Defendants altered in the appellate trial, and sentenced Defendant B to the judgment dismissing the appeal regarding the claim for cancellation of the registration of the establishment of a mortgage and the claim for cancellation of the registration of the decision of voluntary commencement of auction (hereinafter referred to as “the judgment of review”).

C. The Plaintiff, who is dissatisfied with the judgment on retrial, appealed by the Supreme Court Decision 2014Da24495, but the Supreme Court rendered a judgment dismissing the judgment subject to retrial on June 12, 2014, and the judgment subject to retrial becomes final and conclusive on June 16, 2014.

D. On June 14, 2019, the Plaintiff filed a lawsuit seeking re-deliberation on the part against the Defendants among the judgment on re-deliberation.

2. The plaintiff's ground for retrial

The plaintiff argues to the effect that there is a ground for retrial under Article 451 (1) 5 through 10 of the Civil Procedure Act on the grounds that there exists a ground for retrial on the basis of ① there is a ground for retrial based on the violation of the rules of evidence, lack of reasons, and misapprehension of the legal principles, ② the judgment on retrial falls under the judgment made due to the destruction of evidence, destruction of ambiguous evidence, etc. by the defendants, ③ a judgment made based on the forged Bao

3. Determination

A. Determination as to the ground for retrial under Article 451(1)5 through 7 of the Civil Procedure Act

1) Article 451(1)5 of the Civil Procedure Act provides that "when a person makes a confession, or interferes with submitting a means of offence or defense that may affect the judgment, due to an act committed by another person subject to criminal punishment," subparagraph 6 of the same paragraph provides that "when the documents and other articles used as evidence of the judgment have been forged or altered," and subparagraph 7 of the same paragraph provides that "when the false statement of a witness, appraiser, or interpreter, or when the party or legal representative made a false statement through the party examination becomes evidence of the judgment," respectively, as grounds for retrial, Article 451(2) of the Civil Procedure Act provides that "when a judgment of conviction against an act subject to punishment, or judgment of imposition of a fine for negligence, becomes final, or when a final and conclusive judgment of conviction or judgment of imposition of a fine for negligence cannot be rendered due to an act other than evidence, a new trial may be instituted again unless it satisfies the requirements for a retrial under Article 451(1)5 through 7 of the Civil Procedure Act, including the aforementioned grounds for retrial.

2) Based on the above legal principles, the Plaintiff did not specify the act of punishment of another person in relation to the judgment subject to a retrial, or the act of forging or altering documents and other articles as evidence, or the act of false expert testimony, and there is no evidence to prove that the Plaintiff could not be convicted of a final judgment of conviction for reasons other than lack of evidence, for which the judgment of conviction became final and conclusive or for reasons other than lack of evidence.

3) Therefore, the part concerning the grounds for retrial under Article 451(1)5 through 7 of the Civil Procedure Act among the lawsuits for retrial of this case is unlawful.

B. Determination on the ground for retrial under Article 451(1)8 of the Civil Procedure Act

Article 451(1)8 of the Civil Procedure Act provides that "when a civil or criminal judgment or any other judgment or administrative disposition based on a judgment has been altered by a different judgment or administrative disposition," the grounds for retrial are prescribed as "when a judgment has been altered by a different judgment or administrative disposition." Here, "the judgment becomes the basis of a judgment" refers to cases where a judgment legally binding force by a final judgment, or where the contents of a judgment have become data for fact-finding in a final judgment, and where its alteration is likely to affect the fact-finding in a final judgment (see, e.g., Supreme Court Decision 2003Da55936, Jun. 24, 2005). However, the judgment for retrial does not seem to have been based on any judgment or any other judgment or administrative disposition, and there is no evidence that other judgment or administrative disposition based on a judgment has been altered by a different administrative disposition. Therefore, this part of the plaintiff's request for retrial is without merit.

C. Determination on the ground for retrial under Article 451(1)9 of the Civil Procedure Act

1) In light of the proviso of Article 451(1) of the Civil Procedure Act, a lawsuit for a retrial cannot be filed against the judgment of the court of final appeal which became final and conclusive on the ground of appeal asserted in the ground of appeal, and if the judgment of the court of final appeal is omitted, it can be known if the original copy of the judgment was served on the original copy of the judgment. Thus, barring any special circumstance, barring any special circumstance, it could be asserted as the grounds for final appeal since it could be known that there was omission in judgment when the original copy of the judgment of the court of final appeal was served on the original copy of the judgment, and it could not be asserted as the grounds for final appeal. Thus, barring any special circumstance, a lawsuit for retrial cannot be brought unless the court of final appeal asserts omission as the grounds for final appeal (see, e.g., Supreme Court Decision 2006Da4205, Jun. 29, 207). In light of the purport of the proviso of Article 451(1) of the Civil Procedure Act providing supplementary nature of the judgment and the trial.

2) On the other hand, the plaintiff appealed against the judgment on retrial, but the appeal was dismissed due to the non-trial behavior and the facts that the judgment on retrial became final and conclusive are as seen earlier. Therefore, regardless of whether the plaintiff omitted the judgment on the judgment subject to retrial, the plaintiff may not file a lawsuit on the judgment subject to retrial on the ground that the grounds for retrial under Article 451(1)9 of the Civil Procedure Act, i.e., the grounds for retrial, regardless of whether the plaintiff asserted this part of the grounds for retrial as grounds for retrial

3) Therefore, the part concerning the grounds for retrial under Article 451(1)9 of the Civil Procedure Act among the lawsuits for retrial of this case is unlawful.

D. Determination on the grounds for retrial under Article 451(1)10 of the Civil Procedure Act

In addition, there is no evidence to acknowledge that there is a ground for a retrial that is contrary to the final judgment rendered before the judgment for retrial was rendered, and that there is a ground for a retrial that is contrary to the final judgment rendered before the judgment for retrial. Accordingly, the plaintiff's request for a retrial for this part is without merit.

4. Conclusion

Therefore, the part concerning the grounds for retrial under Article 451(1)5 through 7, and 9 of the Civil Procedure Act among the lawsuits for retrial of this case is unlawful and dismissed. The part concerning the grounds for retrial under Article 451(1)8 and 10 of the Civil Procedure Act among the petitions for retrial of this case is dismissed as it is without merit. It is so decided as per Disposition.