In a case where the parties concerned have filed a request for proposing the unconstitutionality of a law and filed a constitutional complaint in another related case, whether the decision is unconstitutional without accepting the request for resumption of argument after the decision of unconstitutionality is rendered (negative)

According to Articles 41 and 42 of the Constitutional Court Act, only when a court in charge of the case in question requests an adjudication on the constitutionality of a law to the Constitutional Court ex officio or by decision at the request of a party, the adjudication on the case in question shall be suspended until the Constitutional Court makes a decision on the constitutionality of a law. Thus, since the plaintiff applied for an adjudication on the constitutionality of a law to a court in charge of other related cases and requested an adjudication to the Constitutional Court, even if the plaintiff applied for an adjudication on the constitutionality of a law to the court in charge of other related cases and filed a request for an adjudication to the Constitutional Court, even though the decision of the court below dismissed the lawsuit in this case after the Constitutional Court made a decision on the constitutionality of a law and applied for the resumption of argument to the court below, it cannot be deemed that the

Article 42 of the Constitutional Court Act, Articles 107(1) and 111 of the Constitution

Shin Dong-dong

Attorney Jung-gu et al., Counsel for the defendant-appellant

Daegu High Court Decision 86U4 delivered on July 19, 1989

The appeal is dismissed.

The costs of appeal shall be assessed against the Plaintiff (Appointed Party and Review Plaintiff).

1. Judgment on the ground of appeal No. 1 by the Plaintiff (Appointed Party. Review Plaintiff, subsequent thereto, is abbreviationd)

According to Articles 41 and 42 of the Constitutional Court Act, only when the court in charge of the case in question requests an adjudication on the constitutionality of a law to the Constitutional Court ex officio or by decision at the request of a party, the adjudication on the case in question shall be suspended until the Constitutional Court makes a decision on the constitutionality of a law. Thus, the adjudication on the case in question shall be suspended until the Constitutional Court makes a decision on the constitutionality of a law, such as the theory of the lawsuit, at the court in charge of Busan District Court 8ReNaNaNa44, which is related to the case in question, and the Constitutional Court requested an adjudication on the constitutionality of a law to the Constitutional Court. Thus, even though the decision of the court below dismissed the litigation in this case after the Constitutional Court made a decision on the constitutionality of a law and applied for the resumption of oral argument to the court below, the judgment of the court below shall not be deemed to violate Articles 107(1)

2. Determination on the ground of appeal No. 2

Since there is no evidence to support that res judicata effect of the judgment subject to a retrial extends to the representative's highest salary bar, the part of the court below's decision that the plaintiff was not a party to the lawsuit for a retrial of this case was erroneous as to the relation to the representative's highest salary bar, but the court below, following the fact that the plaintiff asserted as a ground for a retrial, does not fall under any subparagraph of Article 422 (1) of the Civil Procedure Act, and since the lawsuit for a retrial of this case was filed on October 10, 1986, clearly after five years from July 28, 1981 when the judgment subject to a retrial became final and conclusive, the lawsuit for a retrial of this case was filed on October 10, 196, and therefore, the court below's above error did not affect the conclusion of the court below, and therefore, it cannot be accepted.

3. Therefore, the plaintiff's appeal is dismissed, and the costs of appeal are assessed against the plaintiff who has lost. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Jae-sung (Presiding Justice)