[Plaintiff, Retrial Plaintiff] Ben Man-yoon
[Defendant, Retrial Defendant] Private School Teachers Pension Management Corporation (사립학교교원 연금관리공단)
[Judgment Subject to Retrial] Supreme Court Decision 2001Da64868, decided September 13, 2004
[Order]
The retrial action is dismissed. The costs of the retrial litigation shall be borne by the Plaintiff (Retrial Plaintiff).
[Reasoning]
The Plaintiff (Retrial Plaintiff, hereinafter referred to as the "Plaintiff") asserts that the judgment subject to this retrial, which held that "the part of the lower court's judgment adverse to the Defendant shall be reversed, and this part of the case shall be remanded to a panel of the Seoul Central District Court. The Plaintiff's appeal is dismissed," contains grounds for retrial under Article 451, Paragraph 1, Items 1, 9, and 10 of the Civil Procedure Act (민사소송법).
However, a remand judgment of the Supreme Court cannot be deemed to constitute a "final and conclusive judgment" that is subject to retrial (see Supreme Court en banc Decision 93Jaeda27, 34, decided February 14, 1995), and therefore the portion of the retrial action directed at the remand judgment among the judgment subject to retrial is unlawful. Furthermore, the Plaintiff merely asserts, in a vague manner, that grounds for retrial under each item of the aforementioned provision exist, without specifying the concrete grounds for retrial, and it cannot be found from the record that such grounds for retrial exist. Accordingly, this cannot constitute a lawful ground for retrial, and as a result, the entirety of this retrial action cannot avoid being deemed unlawful.
Therefore, this retrial action is dismissed, and the costs of the retrial litigation shall be borne by the Plaintiff, who has lost the case. This judgment is rendered as stated in the Order, in accordance with the unanimous opinion of the participating Justices.
Justice Kim Yong-dam (Presiding Justice), Bae Ki-won, Lee Kang-guk (Justice in Charge)