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1. The plaintiff's petition for retrial is dismissed.
2. The costs of retrial shall be borne by the plaintiff.
Reasons
1. On February 11, 2014, the Plaintiff filed a lawsuit against the Defendant for a claim for collection amounting to 2013da30341, which became final and conclusive in the judgment subject to a retrial. On April 28, 2015, the Defendant appealed from this court as the court 2014Na4576, and the Defendant appealed from this court as the court 2014Na4576, and was sentenced to a ruling to revoke the judgment of the first instance and dismiss the Plaintiff’s claim (re-adjudication). Accordingly, the fact that the Plaintiff appealed from Supreme Court 2015Da28920 and the judgment dismissing the appeal from the Supreme Court on November 26, 2015 is apparent in the record that the judgment subject to a retrial becomes final and conclusive.
2. The Plaintiff, which was the cause of the request for retrial, sent a peremptory notice to urge the Defendant to pay the collection amount (Evidence A No. 6), and the Defendant sought a grace period.
If an obligor has sought a grace period for performance, the peremptory notice shall continue until the obligee receives such reply, and the period of six months as prescribed in Article 174 of the Civil Code shall be interpreted to be calculated from the time when the obligee receives a reply from the obligor.
Although the motion for interruption of extinctive prescription due to the peremptory notice was the first time in the final appeal, there is a precedent that the Supreme Court held that the submission of evidence alone has the effect of asserting, and the judgment subject to a retrial omitted the judgment of the Plaintiff’s assertion from the time when the written peremptory notice was submitted to the first instance court, so there is a ground for retrial falling under Article 451(1)9 and 10
3. Determination
A. Article 451(1)9 of the Civil Procedure Act cannot be deemed as an omission of judgment under Article 451(1)9 of the Civil Procedure Act, inasmuch as it is difficult to view that the submission of a written peremptory notice as evidence does not constitute an omission of judgment.
B. The validity of the judgment under Article 451(1)10 of the Civil Procedure Act, Article 451(1)10 of the Civil Procedure Act.