Summary
The restrictions on grounds that were asserted on appeal, or that were known but not asserted, are applied together.
2.1The Standard by Which the Path Opens
Retrial must follow the statutory grounds and limitations applicable to a final judgment that has become final and conclusive. Attacks reserved for a later opportunity do not invariably revive after finality. Plaintiff A obtained a new document after the final and conclusive judgment, but cannot yet explain which ground for retrial in a civil action that document falls under. In this situation, the questions are whether grounds that could have been contested on appeal may be held in reserve for retrial, and what the standard is for opening the channel of this relief. Because no year or date of commencement is fixed for the scene, computation of the period is not determined at this point.
Article 451 of the Civil Procedure Act provides: "① An action for retrial may be brought against a final judgment that has become final and conclusive where any one of the following subparagraphs applies: Provided, That this shall not apply where a party asserted the ground by appeal, or failed to assert it despite knowing of it." In this text, "the party" refers to the party to the final judgment that has become final and conclusive, and the conduct restricted is the assertion of the ground by appeal or the failure to assert it despite knowing of it. The conditions are that a final judgment that has become final and conclusive exists and that one of the enumerated grounds applies. This section addresses only the main text and the proviso of this paragraph.
This text places together in one Article the ground that opens the door of retrial and the limitation that closes it. Whether the main text's subparagraphs are met is the stage of determining the existence or non-existence of grounds for retrial, while the proviso's relationship to appeal is a separate stage of determining why such grounds can no longer be brought out after finality. The reason the two stages must be distinguished is that, even where a ground falls within the enumerated ones, if it is a ground the party asserted on appeal or deliberately refrained from asserting despite knowing of it, it cannot be brought by an action for retrial. Only where the statutory grounds for retrial, the prerequisite of prior finality, the time limit or its exceptions are satisfied and the correctness of the outcome of the original judgment can be re-examined as well does the entrance to this relief open.
Counterarguments target the circumstances of one who is not there. A party who truly lacked the capacity to appeal may, even if aware of the ground, have faced finality without actively asserting it on appeal. If a person who had no leisure to bear the procedure or lacked resources is excluded from relief by the limitation, that loss operates without regard to the gravity of the ground itself. It is also pointed out that a serious misjudgment falling outside the enumerated grounds leaves a gap of relief in the first place. Yet without erasing this disadvantage, one cannot write so that grounds knowingly left unasserted are reserved for retrial without limitation. If attacks that could have been raised on appeal are held in reserve in advance and then summoned without limit after finality, the limitation of the proviso loses its substance.
The facts confirmed in the synthetic scene extend only to the point that plaintiff A obtained a new document after the final and conclusive judgment and that he cannot explain which ground for retrial in a civil action the document falls under. The nature of the new document and the circumstances of its acquisition, and what was known and what was asserted during the appeal proceedings, are undetermined. Accordingly, whether plaintiff A falls within the case of failing to assert a ground despite knowing it, and whether he is caught by the limitation of the proviso, cannot be determined on this scene alone. It must also be confirmed together whether the performance, parties, and conditions demanded by plaintiff A are specified in the prayer for relief and whether he can defend the right in the chosen form of action, and only when confirmed is the matter examined in the direction of opening the door of the channel. When prior materials such as the final and conclusive judgment, the occurrence and awareness of the ground, the course of the appeal, and a final and conclusive judgment in a criminal case accumulate, the determination is bound by those materials.
What this section permits is the determination that, where the statutory grounds for retrial, the prerequisite of prior finality, the time limit or its exceptions are satisfied and the correctness of the outcome of the original judgment can be re-examined as well, the door of retrial may open in the form of a specified claim and a defensible form of action. The supplementary channel here means the nature of retrial as it opens within the statutory relationship with appeal, and it is not a general re-remedial procedure that substitutes for appeal. Accordingly, grounds that could have been contested on appeal cannot be held in reserve without limitation and then used; conversely, if the ground itself does not fall within the enumerated ones, the matter is closed before the proviso is even discussed.
2.2The Conditions That Block Relief
As confirmed in the preceding section, this relief operates where the statutory grounds for retrial, the prerequisite of prior finality, the time limit or its exceptions are satisfied and the correctness of the outcome of the original judgment can be re-examined as well. What must be asked now, then, is the opposite side. May grounds that could have been contested on appeal be reserved for retrial? That is, the question is whether the method of separately holding back attacks already in hand before finality and then bringing them out again after the final and conclusive judgment is permitted. This question also covers attacks left in reserve that could not be properly classified alongside newly obtained materials.
The text answering this question is Article 451(1) of the Civil Procedure Act. Its main text states: "① An action for retrial may be brought against a final judgment that has become final and conclusive where any one of the following subparagraphs applies: Provided, That this shall not apply where a party asserted the ground by appeal, or failed to assert it despite knowing of it" (Article 451 of the Civil Procedure Act). The subject here is the party seeking to bring an action for retrial, and the conduct is the bringing of an action for retrial. The condition is the existence of a ground corresponding to one of the enumerated subparagraphs, and the proviso closes the door on the basis of the course of assertion of that ground.
This proviso must be regarded as defining the nature of retrial within the statutory relationship with appeal. Retrial, as seen in the preceding section, is the supplementary channel that remains after the ordinary means of challenge of appeal has closed; it is not another route laid out in parallel with appeal. The proviso therefore treats two cases together. If the ground was already asserted on appeal, there is no need to reopen it; if it was known and yet not asserted, the result of that choice cannot be reversed. Along with this, where none of the grounds in the enumerated subparagraphs exists, the door of retrial does not open at all. Accordingly, where there is no statutory ground, or where one is caught by the non-assertion-on-appeal limitation or the time limitation without any applicable exception, and only a new grievance remains, this relief is blocked.
Then remains a counterargument that a party who truly lacked the capacity to appeal may be disadvantaged. Even a person who, dissatisfied with the judgment, forwent appeal because of litigation costs, time, or lack of information may later obtain important materials and seek retrial; the wording of the proviso, judging only by the course of appeal, may bar him. In addition, a gap of relief remains for serious misjudgments outside the enumerated grounds. Yet to reduce that disadvantage, one cannot write so that grounds knowingly left unasserted are reserved for retrial without limitation. For then the choice at the appeal stage that sustains the function of the final and conclusive judgment becomes meaningless, and the opposing party could call back at any time an examination already closed. A ground not known remains a different problem under the wording of the proviso.
This fact alone permits neither the assertion that the door of retrial has opened nor that it is blocked. Whether the time of obtaining the document and the time of awareness overlap with the appeal stage before finality, whether the forgoing of appeal was a choice made with knowledge, and what relation the new document bears to the grounds of the enumerated subparagraphs are all unconfirmed. Accordingly, what can be asserted is narrow. Moreover, even where grounds for retrial exist, if the outcome of the original judgment is recognized as correct, it is changed not to a grant of retrial but to a dismissal (rejection on merits) of the claim.
That is the conclusion permitted in this section. To bring out again without limit in retrial grounds knowingly left in reserve before finality is the direction the proviso blocks, not the direction this relief protects. By the same token, it is not the case that materials newly obtained after finality all become void. Whether those materials fall within the enumerated grounds, when the ground became known, and whether they reach an exception to the non-assertion-on-appeal limitation or the time limitation must be examined separately.
2.3The Boundary That Remains When There Is No Data
The question whether grounds that could have been contested on appeal may be reserved for retrial briefly carries forward the conclusions up to the preceding stage of analysis. What was set out earlier is only the premise that retrial must follow the statutory grounds and limitations for a final judgment that has become final and conclusive; what is asked now is where, within those limitations, the boundary lies that cannot be determined for want of materials.
The source text, Article 451 of the Civil Procedure Act, limits the bringing of an action for retrial against a final judgment that has become final and conclusive to cases falling under one of the grounds in the subparagraphs, and writes: "Provided, That this shall not apply where a party asserted the ground by appeal, or failed to assert it despite knowing of it." This text takes as its subject the party bringing an action for retrial, and treats as an exclusionary condition for commencing retrial the conduct of having asserted that ground on appeal or of having failed to assert it despite knowing of it. Here the awareness of knowing the ground and the neglect of not asserting it stand together, and the scope of this proviso cannot be delimited by either alone.
The conclusion connected with this text is that, where the time the ground became known or the crime-related prior finality condition cannot be confirmed, matters on which the adjudicative materials are unspecified are left undetermined, distinct from impossibility. If the time of becoming aware of the ground is unconfirmed, there is no basis to determine whether the exclusionary condition of the proviso is met, and without confirmation of the crime-related prior finality one cannot assert the very establishment of that ground. The reason these two cases are not mixed with impossibility is simple: impossibility means a state in which the legal channel is closed, whereas undetermined means a state awaiting the filling in of materials.
The counterargument that this boundary may disadvantage the party is substantial. A party who truly lacked the capacity to appeal had no opportunity at all to assert on appeal, and if he must retreat before the door of retrial for that reason, a gap of relief remains. That is all the more so for serious misjudgments outside the enumerated grounds. Even so, the author's answer does not shake. One cannot write so that grounds knowingly left unasserted are reserved for retrial without limitation. The disadvantageous part of the counterargument remains as it is, but that disadvantage does not become a ground for loosening the limitation demanded by the wording of the proviso.
The final and conclusive judgment in this scene possesses the character of a final judgment that has become final and conclusive, which demarcates the object of retrial, and the new document is a material that fails to specify both the establishment of the ground and the time of awareness. Accordingly, the time of knowing the ground cannot be fixed, nor can the crime-related prior finality condition be confirmed. In this situation there is no need to revisit the condition that, even where grounds for retrial exist, if the outcome of the original judgment is recognized as correct, it is changed not to a grant of retrial but to a dismissal (rejection on merits) of the claim. What cannot be confirmed now is not the correctness of the original judgment but the adjudicative materials of the preceding stage.
The conclusion permitted in this section is narrow. Where the time the ground became known or the crime-related prior finality condition cannot be confirmed, matters on which those adjudicative materials are unspecified are not driven into impossibility but left undetermined. This does not mean that grounds that could have been contested on appeal may be held in reserve for retrial without limit, nor does it leave open a channel for belatedly reserving grounds subject to the non-assertion-on-appeal limitation. It merely leaves the state of having no materials as a state of having no materials; it does not make that state a requirement of finality and thereby close the door of retrial first.
2.4The Records Needed for Determination
Where the time the ground became known or the crime-related prior finality condition cannot be confirmed, the adjudication is left undetermined, and this is distinguished from cases where relief is blocked. Following the preceding section, which left insufficient materials undetermined, the question now is on what records an attack left after finality can revive. What must be asked in this scene is not the newly obtained document but what materials must lie alongside that document before it can stand before the door of retrial.
Article 451 of the Civil Procedure Act provides for this as follows. "① An action for retrial may be brought against a final judgment that has become final and conclusive where any one of the following subparagraphs applies: Provided, That this shall not apply where a party asserted the ground by appeal, or failed to assert it despite knowing of it." In this text the subject is the party to the final judgment that has become final and conclusive, the conduct is the bringing of an action for retrial, and the condition is that one of the enumerated grounds applies. The proviso excludes from the door of retrial cases in which the same ground was already asserted on appeal, or in which the party knew of the ground and did not assert it.
The place where this condition is set is the nature of retrial as it opens within the statutory relationship with appeal, that is, the character of a supplementary channel. A supplementary channel does not mean a route by which grounds that could have been handled in the procedure of appeal are held in reserve and placed before the court after finality; it means a channel that opens only a limited place within the relationship with appeal. To adjudicate that limitation, prior materials such as the final and conclusive judgment, the occurrence and awareness of the ground, the course of the appeal, and a final and conclusive judgment in a criminal case must be laid down as the basis. Whether there is a final judgment that has become final and conclusive, when that ground occurred and when it became known, which grounds were already asserted at the appeal stage, and, for crime-related grounds, whether a final and conclusive judgment in a criminal case preceded must be settled On the records. Without these records, whether the matter was already handled at the appeal stage or was knowingly left in reserve is connected to nothing, and so the conclusion remains undetermined.
That said, the loss of a party who lacked the capacity to appeal does not diminish. The discomfort at which the Counterarguments aim is that if a person who could not fully use the opportunity of appeal is bound by the same limitation in post-finality retrial as well, there may in fact remain no place to contest at all. Nor does it disappear that a gap of relief remains for serious misjudgments outside the enumerated grounds. Even so, one cannot write so that cases of knowingly leaving a ground in reserve are reserved for retrial without exception. If so written, the limitation set by the proviso itself is rendered powerless, and grounds already handled on appeal could rise again after finality without end. The adjudication remains limited to determining On the records whether the ground was knowingly left unasserted, irrespective of the presence or absence of the capacity to appeal.
In this scene, the existence of the final and conclusive judgment and the acquisition of the new document are confirmed, but the time of the occurrence and awareness of the ground, which grounds were already asserted at the appeal stage, and, for crime-related grounds, whether there was a final and conclusive judgment in a criminal case, are not in place. The existence of a final and conclusive judgment does not settle the grounds for retrial and the limitation of the proviso together, nor does the mere fact of having obtained a new document fix when the ground became known. On this scene alone, moreover, it is difficult to view the new document as having been held in reserve, and equally difficult to view it as grounds that could have been contested on appeal now being brought out. These are matters to be adjudicated once the records come in, and at the present point they remain undetermined.
The conclusion permitted in this section is that retrial functions as a supplementary channel opening within the statutory relationship with appeal, and that the adjudication opening its door rests on prior materials such as the final and conclusive judgment, the occurrence and awareness of the ground, the course of the appeal, and a final and conclusive judgment in a criminal case. The conclusion not permitted in this section is to fix, without those records, whether a ground was knowingly left in reserve, or whether it exceptionally had to be left in reserve, or to regard the door of retrial as opening immediately because a new document was obtained.
2.5Circumstances That Change the Decision
That conclusion was that retrial must follow the statutory grounds and restrictions applicable to a final judgment that has become final and conclusive. The question that now remains is whether grounds that could already have been contested on appeal may be held back for the next opportunity and then raised in retrial. In other words, the issue is whether an attack that was not submitted at the appellate stage at that time can be revived in the procedure of retrial.
The provision that can answer this question is set out in Article 451 of the Civil Procedure Act. This provision addresses together two courses of conduct, namely, where the party in question 'asserted' a specified ground 'by appeal,' or, 'knowing' that ground, did not assert it.
By listing 'grounds asserted on appeal' and 'grounds known but not asserted' side by side, this provision indicates that both cases are subject to the restriction. Accordingly, the supplementary pathway spoken of in this section means the character of retrial as it opens within the statutory relationship with appeal, and which grounds may be held back for retrial is determined by that relationship. Here, the definition of supplementary pathway means that retrial opens on the premise of the statutory relationship of the prior stage of appeal.
There is, however, the counterargument that a party who in fact lacked the means to appeal may be placed at a disadvantage. This counterargument points out that such a party suffers a loss at the threshold of retrial. Even so, the restriction corresponding to this question cannot be read to allow grounds knowingly left unasserted to be reserved for retrial without limitation. This conclusion does not erase the difficulty of that counterargument; it means that the scope of the restriction set by the provision is maintained as written.
In this scene, Plaintiff A obtained a new document, but no fact is recorded as to whether that ground 'was asserted by appeal' or 'was known but not asserted.' Therefore, until the course of Plaintiff A's appeal is confirmed, it cannot be determined whether the restriction applies, and this remains undetermined.
The conclusion permitted in this section is that retrial is restricted as to grounds that were asserted on appeal or knowingly left unasserted. And even where grounds for retrial exist, if the result of the original judgment is found to be justifiable, the direction of the disposition shifts to a dismissal of the claim rather than a grant of retrial. Conversely, while the course of the appeal remains unverified, it is impossible to determine which grounds remain alive for retrial. The boundary of this question ends here, and the next sentence continues as before.
2.6The Strongest Counterargument and the Answer
A party who in fact lacked the means to appeal may be placed at a disadvantage. The question whether grounds that could have been contested on appeal may be held back for retrial asks whether a pathway newly opened after finality will also receive attacks deferred at the prior instance. The answer to this question calls forth the strongest counterargument at this stage, namely, that the restriction may become a burden to a party who in fact lacked the means to appeal. The issue challenged by the counterargument is narrow. At stake is how far the character of retrial, which opens within the statutory relationship with appeal, extends.
The provision corresponding to this question is Article 451(1) of the Civil Procedure Act. Its text reads: "①If any one of the following subparagraphs applies, an action for retrial may be filed against a final judgment that has become final and conclusive; provided, however, that this shall not apply where the party asserted that ground by appeal, or failed to assert it despite knowing it." The subject of the main text is the party seeking to file an action for retrial, and the object is a final judgment that has become final and conclusive. The proviso refers to the case where that party asserted the ground on appeal or failed to assert it despite knowing it. Where these two cases apply, the exception is established that an action for retrial cannot be filed. The provision's other enumeration of grounds for retrial falls outside the scope of the present question.
The main text of the provision opens retrial as a supplementary pathway against a final judgment that has become final and conclusive. Supplementary pathway means the character of retrial as it opens within the statutory relationship with appeal. The proviso, however, closes the point at which that pathway overlaps with appeal. Here two determinations must be distinguished. One is the intention to hold back for the next opportunity grounds that could have been contested on appeal; the other is the course of events in which grounds were in fact known and yet not raised on appeal. The former alone cannot revive the latter in retrial without limit, because the proviso made both the case of asserting by appeal and the case of failing to assert despite knowing it exceptions alike.
This conclusion does not erase the counterargument that a party who in fact lacked the means to appeal may be placed at a disadvantage. That counterargument targets the loss of a person who lacked the resources, time, or information to submit grounds at the instance and who remains unremedied even after finality. The observation that a remedial gap remains for grave misjudgments outside the enumerated grounds touches on the same discomfort. Even if a new document comes into one's hands belatedly, where circumstances existed such that the ground could not previously have been known, the counterargument takes the view that the formal restriction entrenches substantive disadvantage. The proviso of the provision, however, distinguishes the case of asserting by appeal and the case of failing to assert despite knowing it. If a route of reserving without limitation were opened, the exception of this provision would become an empty space. Accordingly, while the disadvantage revealed by the counterargument is acknowledged, the conclusion is maintained that grounds knowingly left unasserted cannot be reserved for retrial without limitation.
In this scene, the points in time of the occurrence of the ground and of awareness, the course of the appeal, criminal finality, and other prior materials are not fixed. It is also unconfirmed when Plaintiff A learned of that ground and whether it was knowingly left unasserted on appeal. Therefore, on the present facts alone, it cannot be determined whether the proviso to Article 451(1) of the Civil Procedure Act applies. If, even where grounds for retrial exist, the result of the original judgment is found to be justifiable, the conclusion changes to a dismissal of the claim rather than a grant of retrial. This means that the operative conditions of this section require, beyond satisfaction of the statutory grounds, antecedent requirements, and time limits, a rehearing as to the result of the original judgment.
The conclusion this section permits is brief. Retrial against a final judgment that has become final and conclusive is a supplementary pathway that opens within the statutory relationship with appeal, and grounds asserted on appeal or knowingly left unasserted are barred from that pathway by its exception. Here, the circumstance of having lacked the means to appeal alone cannot justify reserving grounds knowingly left unasserted for retrial without limitation. This conclusion does not mean, however, that the legal character of the new document, the time of awareness of the ground, and the course of the appeal have also been determined. Absent such materials, that determination remains undetermined. A lack of materials does not immediately mean that relief is impossible.
2.7The Link to the Application and the Dispositive Part
The preceding section took the view that grounds knowingly left unasserted cannot be reserved for retrial without limitation. In this scene, the issue is whether it is permitted to hold back, exactly as they stood, grounds that could have been contested at the appellate stage and then raise them for the first time in retrial after finality. It must also be examined whether grounds already asserted on appeal and grounds known and yet not asserted can be treated in the same manner.
Article 451(1) of the Civil Procedure Act provides: "①If any one of the following subparagraphs applies, an action for retrial may be filed against a final judgment that has become final and conclusive; provided, however, that this shall not apply where the party asserted that ground by appeal, or failed to assert it despite knowing it." In this text, the party who may file an action for retrial is a party to the final judgment that has become final and conclusive, and the judgment that becomes the object is the final judgment that has become final and conclusive. The restriction set by the proviso binds together the case of asserting a ground on appeal and the case of failing to assert that ground despite knowing it.
Applying this text to the present question, the pathway of holding back, exactly as they stood, grounds that could have been contested on appeal for retrial is closed in both cases alike. The author understands retrial as a supplementary pathway that opens within the statutory relationship with appeal, an expression that denotes the character whereby a route of additional examination opens only as to grounds remaining after appeal has been traversed. Retrial is not a device that repeats the pre-finality procedure for contesting a decision. Accordingly, where a party, after learning of a ground, did not raise it on appeal but held it in reserve, it cannot be raised for the first time as a ground for retrial; and where it was already raised on appeal, an action for retrial cannot be filed.
The point that a party who in fact lacked the means to appeal may be placed at a disadvantage cannot be omitted. Where a person lacking the resources or time to conduct the lawsuit perceived a ground but could not speak to it on appeal, if even raising that ground again after finality is barred, the disadvantage remains as it is. The observation that a remedial gap remains for grave misjudgments outside the enumerated grounds arises in the same direction. Even so, the author takes the view that grounds knowingly left unasserted cannot be reserved for retrial without limitation. This is because, if the method were used of always leaving in reserve grounds that could already have been dealt with at the appellate stage and then raising them after finality, the stability of the final and conclusive judgment and the sequence of the appellate procedure would be shaken together.
In this scene, only the facts that the final and conclusive judgment has already been pronounced and the appeal has ended, and that the new document was obtained after finality, are settled. When that document was drafted, when it came to be known, and whether that ground was asserted on appeal, however, are not settled by the scene. Therefore, whether a ground based on the new document falls within grounds asserted on appeal or knowingly left unasserted cannot be determined from this scene alone, and the relevant records must be confirmed. If one condition of the disposition is changed, even where grounds for retrial exist, if the result of the original judgment is found to be justifiable, it is changed to a dismissal of the claim rather than a grant of retrial.
The conclusion that grounds which could have been contested on appeal cannot be held back for retrial does not mean that the door of retrial is shut; it means that retrial does not become a pathway that reopens even grounds that could already have been dealt with on appeal. Retrial is a supplementary pathway that follows the statutory grounds and restrictions applicable to a final judgment that has become final and conclusive, and that restriction applies alike to grounds asserted on appeal and grounds knowingly left unasserted. What is confirmed here is limited to the principle governing the treatment of grounds deferred at the appellate stage. Matters as to which the records have not been confirmed remain undetermined.
2.8The Scope This Section Undertakes
Taking up from the preceding section, which asked whether grounds that could have been contested on appeal may be held back for retrial, the present section grasps the problem that such an attack, left in reserve for the next opportunity, does not always come back to life after finality. Upon this scene, it asks what statutory relationship retrial bears to appeal.
The main text of Article 451(1) of the Civil Procedure Act provides that if any one of the following subparagraphs applies, an action for retrial may be filed against a final judgment that has become final and conclusive. The proviso to the same paragraph adds that this shall not apply where the party asserted that ground by appeal, or failed to assert it despite knowing it (Civil Procedure Act, Article 451). In terms of the text, the party who initiates retrial is a party who contests the final judgment that has become final and conclusive; the act is the filing of an action for retrial; and the condition is that the case falls within any one of the enumerated grounds.
The link connecting this provision to the present conclusion lies in the fact that the proviso binds two cases together. One is the case where the party already asserted the ground on appeal; the other is the case where the party failed to assert the ground despite knowing it. If the former prevents a repetition of an opportunity already used, the latter prevents an attempt to convert what was knowingly held back later into a reservation. Here the premise that retrial must follow the statutory grounds and restrictions applicable to a final judgment that has become final and conclusive takes concrete form, and the character of the supplementary pathway, namely, of retrial as it opens within the statutory relationship with appeal, becomes apparent.
The counterargument that a party without means for appeal may be placed at a disadvantage in this respect aims at substantive loss. If a ground that could not be contested for want of resources is later closed off, the attacking opportunity that was in fact the party's only one disappears. The criticism that a remedial gap remains for grave misjudgments outside the enumerated grounds points in the same direction. This is because, if grounds already known and left in reserve were permitted to be held without limit, the qualification of the proviso would become meaningless.
What is confirmed in Plaintiff A's scene is only the fact that a new document was obtained after the final and conclusive judgment, together with the circumstance that it has not yet been explained which ground for civil retrial that document falls under. Whether that document existed during the appeal and falls within grounds known and yet not asserted is not settled by this scene alone. Since the prior materials by which to confirm the points in time of the occurrence of the ground and of awareness, and the course of the appeal, are also not settled, whether the ground in question is caught by the qualification of the proviso remains undetermined.
Accordingly, this conclusion, inheriting the statutory relationship between appeal and retrial left by the preceding section, makes clear that retrial is not a window through which grounds arising after a final and conclusive judgment are reserved indefinitely. Only, whether a given ground is caught by the proviso is determined after confirming, for each ground, the time of awareness and the course of the appeal. The fact that undetermined materials remain does not immediately make relief impossible. How does the text of Article 451 of the Civil Procedure Act support this conclusion?
2.9Application of the Text of the Provisions and the Holdings of Precedents
So long as retrial opens on a supplementary basis against a final and conclusive civil judgment, the core of the present question is by what text that door is closed. Maintaining the premise that retrial must follow the statutory grounds and restrictions applicable to a final judgment that has become final and conclusive, it asks whether grounds that could have been contested on appeal may be held back for retrial.
The relevant provision is limited to the main text and the proviso of Article 451(1) of the Civil Procedure Act. It is set down as follows: "①If any one of the following subparagraphs applies, an action for retrial may be filed against a final judgment that has become final and conclusive; provided, however, that this shall not apply where the party asserted that ground by appeal, or failed to assert it despite knowing it." Here the subject is the party, its acts are the assertion by appeal and the non-assertion of a known ground, and the condition is that such a ground cannot serve as a ground for retrial.
The link joining this text to the foregoing conclusion is the scope of application of the text. Whether the case falls within one of the subparagraphs of the main text and whether the exception of the proviso applies are distinct stages of determination, and when the proviso closes the door of the main text, it does not separately enlarge the kinds of grounds. Accordingly, only the text of the relevant provision is used as the basis for deciding retrial against a final and conclusive civil judgment, without extension to the reasons for judgment or to other paragraphs. This is an interpretation that preserves as it stands the character of the supplementary pathway, namely, of retrial as it opens within the statutory relationship with appeal.
The strongest counterargument is aimed at the fact that a party without the means to bear the lawsuit is placed unilaterally at a disadvantage. A party who in fact lacked the means to appeal may indeed be placed at a disadvantage, and it is likewise read as it stands that a remedial gap remains for grave misjudgments outside the enumerated grounds. Without concealing the loss pointed out by the counterargument, the conclusion is maintained within the bounds of the restriction set by the text.
The facts confirmed in the synthetic scene are that Plaintiff A obtained a new document after the final and conclusive judgment, but that it has not yet been explained which ground for civil retrial that document falls under. Whether this document constitutes a ground that was asserted by appeal or failed to be asserted despite being known is also not settled by the scene, so the applicability of the proviso cannot be categorically determined from this scene alone. Accordingly, whether the proviso applies, together with the existence and content of prior materials such as the final and conclusive judgment, the occurrence of the ground and awareness of it, the course of the appeal, and criminal finality, remains undetermined.
The conclusion this section permits goes no further than taking the text of the relevant provision alone as the standard of decision and applying the restriction concerning grounds asserted on appeal or knowingly left unasserted alike. What is not permitted is to enlarge the scope of the text to the reasons for judgment or to other paragraphs so as to neutralize the restriction; reserving grounds knowingly left unasserted for retrial without limitation also falls within this. Only, the examination that, even where grounds for retrial exist, if the result of the original judgment is found to be justifiable, it is changed to a dismissal of the claim rather than a grant of retrial, merely makes clear that whether a ground applies and what its effect is are separate, and does not go beyond the province of the present construction of the proviso.
2.10Fine Distinctions Within the Stage
재심은 확정된 종국판결에 대한 법정 사유와 제한을 따라야 한다는 전제 위에서, 이번 단계에서는 상소에서 다툴 수 있었던 사유를 재심에 아껴 둘 수 있는지에 이어 그 제한을 어떻게 다시 나누어 판정할지를 묻는다. 확정된 종국판결이라는 것은 상소로 다툴 기회가 지나간 판결을 가리키고, 재심은 그 판결을 다시 열어 보는 예외적인 통로다. 이 장면에서 남은 물음은, 새로 얻은 문서의 성격을 알아내기 전에 먼저 통과시켜야 할 판정의 층위가 무엇인지 정하는 것이다.
이 문언은 확정된 종국판결을 상대로 재심의 소를 제기할 수 있는 주체와 대상을 먼저 가리키고, 이어서 단서에서 상소 절차와의 관계를 조건으로 건다. 문언이 정하는 행위는 두 가지, 즉 상소에 의하여 사유를 주장한 경우와 사유를 알면서도 주장하지 아니한 경우다. 두 경우 모두 재심의 소를 제기할 수 없다는 결과로 이어진다. 이 구절은 재심사유의 열거 자체를 다루지 않고, 열거된 사유가 있어도 재심으로 나아갈 수 없는 제한만을 함께 적용한다.
그 문언과 앞서 확정한 결론을 잇는 고리는 재심이 가지는 보충적 통로라는 성격이다. 여기서 보충적 통로는 상소와의 법정 관계 속에서 열리는 재심의 성격을 뜻한다. 즉 재심은 상소로 다툴 기회를 다 쓴 뒤에 남는 보완 수단이지, 상소 절차를 대신하는 두 번째 본심이 아니다. 이 구별이 중요한 이유는 판정의 순서가 달라지기 때문이다. 먼저 법정 재심사유에 해당하는지, 선행 확정 요건을 갖추었는지, 기간이나 그 예외에 걸리지 않는지를 살핀 뒤에야 원판결 결과의 정당성을 다시 심리할지가 문제 된다. 여기에 상소 미주장 제한이 겹치면, 사유를 알고도 주장하지 아니한 때에는 그 사유로 재심을 열 수 없다.
이렇게 나누면 실제로 상소할 여력이 없었던 당사자가 불리할 수 있다. 소송을 수행할 비용이나 정보, 시간이 부족해서 상소심에서 사유를 제대로 펼치지 못한 사람에게, 확정 뒤에라도 다시 문을 열어 주는 편이 공정해 보일 수 있다. 열거된 사유 밖의 중대한 오판에는 구제 공백이 남는다는 점도 같은 방향을 가리킨다. 상소 단계에서 사유를 알면서도 아껴 두었다가 확정 이후에 다시 꺼내는 것을 허용하면, 상소심의 판정 기회가 무의미해지고 확정판결의 안정성이 흔들린다. 반론이 지적하는 불리한 점은 그대로 두되, 문언이 정한 제한은 제한으로 남겨 둔다.
이 장면에 남은 사실로는 판정을 어디까지 내릴 수 있는지가 정해진다. 확정판결·사유 발생과 인지·상소 경과·형사 확정 등 선행 자료의 종류는 정해져 있으나, 그 자료 안에서 사유를 언제 알았는지, 상소에서 그 사유를 주장했는지는 확인되지 않았다. 따라서 법정 사유가 없거나 상소 미주장 제한·기간 제한에 걸리고 해당 예외도 없으며 단순한 새 불만만 남은 경우에 해당하는지, 아니면 법정 재심사유·선행 확정 요건·기간 또는 그 예외를 충족하고 원판결 결과의 정당성까지 다시 심리할 수 있는 경우인지는 미확정으로 남는다. 범죄 관련 선행 확정 조건을 확인할 수 없는 때도 마찬가지다. 확정된 것은 이 판정의 층위뿐이고, 어느 쪽으로 기울었는지 판단할 자료는 아직 없다.
허용되는 결론은 좁다. 상소에서 다툴 수 있었던 사유를 무제한으로 아껴 두었다가 재심에서 다시 쓸 수는 없고, 알고도 주장하지 아니한 사유에 대해서는 문언이 정한 제한이 함께 적용된다. 이와 달리, 새로 얻은 문서만으로 곧바로 재심사유가 된다고 단정하거나, 자료가 없다는 이유만으로 곧바로 구제가 막혔다고 보는 것은 허용되지 않는 결론이다.
2.11Synthesis of Effectiveness, Blockage, and Undetermination
상소에서 주장했거나 알고도 주장하지 않은 사유에 관한 제한을 함께 적용한다. 이 문장은 재심이라는 통로가 상소 절차로부터 끊어진 뒤에 무제한으로 다시 열리는 것이 아님을 전제로 한다. 앞 절에서 보충적 통로라는 성격을 확인한 뒤에, 이제 그 통로가 실제로 작동하는 때와 막히는 때, 그리고 아직 판단이 서지 않은 때를 구별해야 한다.
이 구별의 출발점은 법문이다. 여기서 문언이 가리키는 주체는 확정된 종국판결의 당사자이고, 행위는 재심의 소의 제기이며, 조건은 열거된 사유 가운데 어느 하나에 해당하는 것이다. 단서는 그 사유를 상소에서 주장했거나 알고도 주장하지 아니한 경우를 예외로 둔다.
이 문언은 재심이 상소와 어떤 관계에 있는지를 분명히 한다. 재심은 상소가 끝난 뒤에 남은 사유를 다시 다루는 보충적 통로이므로, 상소에서 이미 다뤘거나 다룰 수 있었던 사유를 무제한으로 유보할 수는 없다. 따라서 작동과 차단을 나누는 기준은 법정 재심사유가 있는지, 선행 확정 요건과 기간 또는 그 예외를 충족하는지, 그리고 원판결 결과의 정당성까지 다시 심리할 수 있는지에 있다. 이 요건들이 함께 충족되면 재심이 작동하고, 법정 사유가 없거나 단순한 새 불만만 남으면 막힌다. 작동과 차단을 구별해야 하는 이유는 이 두 경우의 법적 근거가 다르기 때문이다.
그럼에도 실제로 상소할 여력이 없었던 당사자는 불리할 수 있다. 상소에서 사유를 주장하지 못한 이유가 능력이나 자원의 부족에 있었다면, 그 당사자에게는 재심조차 막힌 결과가 된다. 이 손실은 반론의 본질이며, 지워서는 안 된다. 그러나 저자의 답은 분명하다. 단서가 정한 제한은 상소 절차의 안정과 확정판결의 효력을 지키기 위한 것이므로, 예외를 확장하는 방식으로 그 제한을 무력화할 수 없다.
이 사실만으로는 재심이 작동한다고 단정할 수 없다. 법정 재심사유의 해당 여부가 확인되지 않았으므로, 선행 확정 요건이나 기간, 그리고 범죄 관련 선행 확정 조건도 함께 확인할 수 없다. 따라서 이 장면의 현재 상태는 미확정이다. 자료가 부족하다는 사실은 곧바로 재심이 차단된다는 뜻이 아니며, 미확정으로 남기는 것이 정확한 처리이다.
이 절이 허용하는 것은 조건을 충족한 경우의 작동, 법정 사유가 없거나 제한에 걸린 경우의 차단, 그리고 확인이 부족한 경우의 미확정이라는 구별이다. 재심사유가 있어도 원판결 결과가 정당하다고 인정되면 재심 인용이 아닌 청구 기각으로 바뀐다는 점도 이 구별 안에 포함된다. 알고도 남겨 둔 사유를 무제한으로 되살리는 것은 허용되지 않는다.
2.12Conclusion Carried Over to the Next Section
앞서 상소와 재심의 관계를 정한 뒤 남은 물음은 그 결론을 어떻게 이어 가는가이다. 이 문장 안에서 상소에서 다툴 수 있었던 사유를 재심까지 아낄 수 있는지는, 남겨 둔 공격이 확정 이후에도 살아 있는지의 문제로 구체화된다. 확정이란 더 이상 통상적 불복 방법을 쓸 수 없는 종국판결의 상태를 가리키고, 재심은 그 확정에 예외적으로 가하는 법정 통로다. 이 장면에서 당장 정할 수 있는 것은 남겨 둔 사유의 운명만이다.
민사소송법 제451조는 각 호의 사유가 있을 때 확정된 종국판결에 대하여 재심의 소를 제기할 수 있다고 정하고, 단서에서 그 한정을 덧붙인다. 여기서 문언이 가리키는 주체는 재심의 소를 내려는 당사자이고, 행위는 상소에서의 사유 주장이며, 조건은 그 사유를 주장했거나 알고도 주장하지 않았다는 것이다. 이 단서는 조문이 열거한 사유의 성질 자체가 아니라 당사자가 사유를 다룬 시기와 태도에 대해 작용한다.
상소 기간 중에 사유를 알고도 내놓지 않은 경우까지 재심에서 다시 받으려 한다면, 단서가 정한 제한은 무력해진다. 때문에 단서는 두 경우를 나란히 다룬다. 이미 상소에서 주장한 사유를 재심에서 되풀이하려는 경우와, 알면서 남겨 둔 사유를 확정 뒤에 꺼내려는 경우가 같은 이유로 막힌다. 이를 통해 보충적 통로가 상소를 대체하는 두 번째 심급이 아니라, 상소와의 법정 관계 속에서 조건부로 열리는 성격을 갖는다고 이해된다. 알지 못해 어쩔 수 없이 놓친 사유를 어떻게 볼 것인지는 별도로 판단할 몫이며, 단서의 문언은 알고도 주장하지 아니한 때를 직접 겨냥한다.
그렇다고 상소할 여력이 없었던 당사자의 처지를 지울 수 있는 것은 아니다. 소송 수행의 현실은 당사자마다 같지 않고, 사유를 안다는 판단도 기록상 언제 알았는지와 정확히 겹치지 않을 수 있다. 실제로 상소할 여력이 없었던 당사자가 불리할 수 있다는 점은 남겨 둔 공격을 제한한 데 따른 비용이다. 그 불이익을 숨기지 않으면서도, 알면서도 남겨 둔 사유를 제한 없이 재심에 유보하도록 쓰는 방향으로는 나아갈 수 없다. 왜냐하면 그 유보가 인정되면 다음 기회를 위해 공격을 숨기는 것이 상소 단계에서 이득이 되고, 확정판결의 법적 안정성이 상소제도의 선택 구조 안에서 흔들리기 때문이다. 따라서 이 절의 답은 무조건적 허용도 무조건적 배제도 아니라, 사유를 다룬 시기와 태도에 묶인 판단이다.
합성 장면에서 따져야 할 사실은 두 가지뿐이다. 원고 A는 확정판결 뒤에 새 문서를 얻었다는 점, 그리고 그 문서가 어떤 민사재심사유에 해당하는지 설명하지 못한다는 점이다. 전자는 재심의 관문에서 출발점이 되는 확정된 종국판결의 존재를 가리키지만, 사유 발생과 인지의 시기, 상소 경과, 형사 확정 여부 같은 선행 자료는 장면에 들어 있지 않다. 따라서 새로 얻은 문서가 단서에 걸리는지도, 사유를 알고도 미주장한 경우에 해당하는지도 이 장면만으로는 정해지지 않는다. 다만 단서의 조건과 대조하면, 이 사유를 상소에서 알고도 주장하지 않았다면 단서에 걸린다는 이론적 구분은 가능하다. 반면 만약 재심사유가 있더라도 원판결 결과가 정당하다고 인정되면 재심 인용이 아닌 청구 기각으로 결론이 달라지는지는 선행 자료가 확인된 뒤에 판단할 일이다.
이 절이 말하는 것은 상소에서 다툴 수 있었던 사유를 제한 없이 재심에 아껴 두어도 좋다는 것이 아니다. 그렇다고 하여 모든 사유가 확정과 함께 소멸한다는 뜻도 아니다. 핵심은 재심이 남겨 둔 공격의 비축 창고가 아니라, 상소와의 법정 관계 속에서 조건을 갖추었을 때만 열리는 보충적 통로라는 성격이다. 확정판결 뒤에 얻은 문서만으로는 어느 사유에 해당하는지 가릴 수 없고, 알고도 미주장한 경우의 제한이 걸렸는지도 별도로 판단한다. 이 경계 안에서 재심사유가 있는지 없는지를 먼저 정하고, 이후에 원판결 결과의 정당성까지 다시 심리할 수 있는지를 살핀다. 그 검토가 끝난 뒤에야 넘어갈 물음이 남는다.
이미 확정된 판결에서 무엇을 새로 다룰 수 있는지를 정한 다음에, 범죄를 둘러싼 주장이 어떤 선행 판단을 요구하는지를 물어야 한다. 지금까지의 구분은 사유를 아꼈는지, 알았는지, 그리고 확정 뒤에 무엇을 얻었는지를 함께 보는 데까지였다. 남은 것은 새로 얻은 문서의 내용이 조문이 요구하는 사유의 형식에 맞는지, 그리고 형사적 판단이 선행되어야 하는지를 살피는 일이다. 위조나 거짓 진술을 주장하면 바로 재심사유가 되는가?