The Supreme Court’s decision that there was a deviation from the determination is a ground for retrial (negative)

When a cause for a retrial has been rejected by a Supreme Court decision on matters that affect a judgment, and there is no assertion that there is a cause for a retrial in the original trial decision, the subject of a retrial is not the original trial decision, but the Supreme Court decision, and thus, a request for retrial filed at the original trial decision based on the original trial

Articles 422 and 424 of the Civil Procedure Act

Busan Industrial Company

[Defendant-Appellant] Jin-Jin-Jin Law Office

Korean Intellectual Property Office Decision No. 5 of 1980, June 30, 1981

The appeal is dismissed.

The costs of appeal shall be borne by the respondent.

Judgment ex officio is made.

According to the records, although the respondent (the applicant for a retrial; hereinafter the applicant for a retrial) asserted in detail that the ground of appeal by the Supreme Court Decision 80Hu79 delivered on November 11, 1980 (hereinafter the "Supreme Court Decision"), which is the final judgment of this case, constituted "No. 21 and No. 22" in the original judgment, the defendant for a retrial against the evidence No. 6, and thus, the registration of the device cannot be null and void. However, the court below rejected the decision of the court below as to the ground of appeal by citing No. 21 and No. 22, which affected the decision of the court below, since the applicant for a retrial had no evidence in comparison with the evidence No. 6. 20, which affected the decision of the court below, and it did not err in the misapprehension of the rules of evidence and the decision of the court below as to the ground of appeal No. 21 and No. 22.

However, even if there is a ground for a retrial on the final judgment (in the case of a patent, a trial or a trial decision) which became final and conclusive, if the parties have asserted or did not know the ground for retrial by an appeal, it is clear under the proviso of Article 422(1) of the Civil Procedure Act that the ground for retrial cannot be brought, and even according to the assertion of the applicant for a retrial of this case, it cannot be seen that the ground for retrial of this case has been determined on matters affecting the above Supreme Court decision, and that there is any ground for retrial in the original trial decision, and therefore, it is evident that the subject of a retrial of this case is not the above decision of the original trial but the above decision of the Supreme Court. Thus, since the subject of a retrial of this case is obvious that the above Supreme Court decision of this case is the subject of a retrial, it was correct that

Although the court below should have dismissed the request for retrial of this case, which was made at the court below on the ground that the above Supreme Court decision was subject to a retrial but could not be subject to a retrial on the ground that there was a ground for retrial, notwithstanding the fact that the request for retrial of this case was dismissed on the ground that there was a ground for retrial, it is unreasonable that the court below dismissed the request for retrial of this case on the ground that there was no ground for retrial. However, it is reasonable to reject the request for retrial of this case on the ground that there was no ground for

Therefore, this appeal is dismissed without examining the grounds for appeal. The costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating judges.

Justices Kang Jong-young (Presiding Justice)