(영문) 서울고등법원 2016.12.22.선고 2016재누194 판결

1. The plaintiff (the plaintiff)'s request for retrial of this case is dismissed. 2. The costs of retrial of this case are assessed against the plaintiff (the plaintiff).

Purport of appeal and review of claim

1. Purport of claim

On August 4, 2014, the defendant (the defendant, hereinafter referred to as "the defendant") revoked the revocation of the designation of the exclusive travel agency for attracting tourists in China (hereinafter referred to as "the instant disposition") against the plaintiff (the plaintiff, hereinafter referred to as "the plaintiff") on August 4, 2014.

2. Revocation of the appeal and the judgment of the first instance court, and seek a judgment such as the purport of the appeal and the judgment of the first instance.

Reasons

1. Circumstances leading to the establishment of the original judgment

A. On August 11, 2014, the Plaintiff filed a lawsuit against the Defendant (Seoul District Court 2014Guhap14860) claiming the revocation of the instant disposition.

B. On November 13, 2015, the Seoul Administrative Court rendered a judgment dismissing the Plaintiff’s claim. While the Plaintiff appealed and appealed, the appellate court (Seoul High Court 2015Nu66730) declared the instant judgment subject to a retrial on April 5, 2016. The appellate court (Seoul High Court 2015Nu66730) declared that the Plaintiff’s appeal is dismissed on April 5, 2016. While the Plaintiff appealed, the judgment subject to a retrial became final and conclusive on July 27, 2016 (Supreme Court Decision 2016Du37560).

D. On August 1, 2016, the Plaintiff filed a request for a new trial against the above Supreme Court ruling (Supreme Court Decision 2016Du280). However, on August 30, 2016, the judgment dismissing the new trial was rendered (Supreme Court Decision 2016Du280).

[Ground of recognition] Facts without dispute, facts which are obvious or obvious in records to this court, the purport of the whole pleadings

2. Summary of the plaintiff's assertion

In the Seoul Administrative Court Decision 2016Guhap58710 decided July 25, 2016, "The Guidelines for the Implementation of Exclusive Tour Attraction of Chinese Organizations" (hereinafter referred to as "the Guidelines") has no effect against the principles of legal reservation under the Constitution and the principles of parliamentary universality, and therefore, the Disposition of this case based on the Guidelines of this case, which is unconstitutional, is unlawful, and the Guidelines of this case itself is merely an administrative rule with no external binding force, and it cannot directly affect the rights and obligations of the people."

In a case subject to review, the Plaintiff asserted that the designation of exclusive tourers would have been revoked in accordance with the foregoing illegal administrative guidelines, but did not accept the Plaintiff’s property loss, and the Supreme Court, which was the final appeal, was dismissed by the same trial. Therefore, the judgment subject to review that the instant guidelines, which were unconstitutional, was lawful, should be revoked, and this constitutes grounds for retrial under Article 451(1)8 through 9 of the Civil Procedure Act.

3. Determination as to the existence of a ground for retrial

A. Whether a ground for retrial exists under Article 451(1)8 of the Civil Procedure Act

Article 451 (1) 8 of the Civil Procedure Act provides that "when a judgment or administrative disposition based on a civil or criminal judgment or other judgment or administrative disposition, which is the basis for a cause for a retrial under Article 451 (1) 8, is changed by a different judgment or administrative disposition" refers to a case where the judgment or administrative disposition, which is the basis for fact-finding, is legally binding, or which is the basis for fact-finding in the final judgment, is finalized and retroactively changed by another judgment or administrative disposition, and where the judgment or administrative disposition, which is the basis for fact-finding in the final judgment, has been adopted as evidence for fact-finding in the final judgment and there is a possibility that the judgment, etc. might affect the fact-finding in the final judgment (see, e.g., Supreme Court Decisions 1, 25, 94; 94Da33897, Jun. 24, 2005; 2005Da53019, Nov. 30, 2007).

Therefore, the Plaintiff’s ground for retrial is without merit.

B. Whether there exists a ground for retrial under Article 451(1)9 of the Civil Procedure Act

Article 451 (1) 9 of the Civil Procedure Act which applies mutatis mutandis under the Administrative Litigation Act refers to a case where the judgement is not clearly stated in the reasoning of the judgment in regard to an attack and defense which a party submitted in a lawsuit and has an influence on the judgment (see Supreme Court Decision 2003Du37, Jun. 10, 2003). In the records, there is no evidence to deem that the plaintiff submitted the illegality of the guidelines of this case in a case subject to retrial as an attack and defense method. Thus, it cannot be viewed as a case where the judgment under Article 451 (1) 9 of the Civil Procedure Act is omitted on the ground that there is no judgment on the judgment subject to retrial.

Furthermore, in light of the proviso of Article 451(1) of the Civil Procedure Act, a suit for a retrial against the original judgment which became final and conclusive on the ground of appeal for which the judgment of the court of final appeal was rendered cannot be filed, and if the original judgment was omitted, the original judgment can be served on the original judgment if the grounds of appeal were read, and barring any special circumstance, it can be known that there was omission in judgment when the original judgment was served on the original judgment, and thus, it could be asserted as the grounds of appeal. Unless there exist any special circumstances, a suit for retrial may not be brought unless the original judgment is known. Ultimately, the original judgment cannot be a legitimate ground of retrial, regardless of whether the appeal was asserted on the grounds of omission of judgment by the court of final appeal, unless there are special circumstances (see, e.g., Supreme Court Decisions 2005Da58236, Jan. 12, 206; 70Da2688, Mar. 30, 1971).

The judgment of retrial was rendered on April 5, 2016 and served on the Plaintiff on April 15, 2016, and the Plaintiff appealed and filed a final appeal with the Supreme Court on July 27, 2016, and the fact that the judgment subject to retrial became final and conclusive on August 1, 2016 is apparent in the record. Therefore, even if the Plaintiff asserted the illegality of the instant guidelines in the case subject to retrial, the Plaintiff falls under “when he/she did not know of the grounds for retrial” and thus, cannot file a lawsuit for retrial pursuant to Article 8(2) of the Administrative Litigation Act and the proviso to Article 451(1) of the Civil Procedure Act.

Ultimately, the Plaintiff’s ground for retrial is without merit.

4. Conclusion

Therefore, the request for retrial of this case is dismissed as it is without merit. It is so decided as per Disposition.