Appeal
Appeal
- An “appeal” is a means of applying for appeal, by which a relevant party seeks a revocation or modification of a judgment by a higher court, before it is made final and conclusive.
- An appeal in respect of a final judgment at first instance is called an “appeal on points of fact and law”, and an appeal in respect of a final judgment at second instance is called a “final appeal”.
Appeal on points of fact and law
- An appeal may be brought against a final judgment handed down by the court of first instance, and shall be filed within two weeks of the date of service of the written judgment (Article 8 (2) of the Administrative Litigation Act and Articles 390 (1) and 396 (1) of the Civil Procedure Act).
Final Appeal
- A final appeal may be brought against a final judgment handed down by the high court or a final judgment handed down by a collegiate panel of a district court as a court of second instance, only on the grounds that there has been a violation of the Constitution, statutes, decrees or regulations, which has affected the judgment (Article 8 (2) of the Administrative Litigation Act and Articles 422 and Article 423 of the Civil Procedure Act).
- A final appeal shall be filed within two weeks of the date of service of the written judgment (Article 8 (2) of the Administrative Litigation Act and Article 396 (1) of the Civil Procedure Act).
- If any one of the following grounds exists in relation to the judgment, then legitimate grounds are deemed to exist in relation to the final appeal (Article 8 (2) of the Administrative Litigation Act and Article 424 of the Civil Procedure Act):
· if the adjudicating court has not been constituted in accordance with the statutes;
· if a judge who, pursuant to the statutes, is ineligible to participate in the judgment has participated in the judgment;
· if there is a violation of the provisions regarding exclusive jurisdiction;
· if there is a defect in the grant of authority of legal representation, power of attorney, or a special authority in relation to conduct of litigation by a representative;
· if there is a violation of the provisions regarding opening the pleadings to the public; or
· if the grounds for the judgment are not disclosed, or there is a contradiction in the grounds.
Retrial
Retrial
- “Retrial” is the seeking of the revocation of a judgment and re-examination of a case that has already been concluded, where there is a serious defect, which amounts to a ground for retrial, in the final judgment that has been made final and conclusive.
- A plaintiff at retrial or defendant at retrial who have suffered a detriment due to the effect of res judicata that applies to a final and conclusive judgment, shall, where there is a ground for retrial in relation to a final judgment that has been made final and conclusive, make a filing within 30 days of the date on which they became aware of the ground for retrial (Article 8 (2) of the Administrative Litigation Act and Article 456 of the Civil Procedure Act).
- The grounds for retrial are as follows (Article 8 (2) of the Administrative Litigation Act and Article 451 (1) of the Civil Procedure Act):
· if the adjudicating court has not been constituted in accordance with the statutes;
· if a judge who, pursuant to the statutes, is ineligible to participate in the trial has participated in it;
· if there is a defect in the grant of authority of legal representation, power of attorney, or a special authority necessary for the conduct of litigation by a representative; provided that, cases where there has been a ratification are excepted;
· if the judge who has participated in the trial has committed a crime as to his/her duties in respect of the case;
· if, due to the criminally punishable acts of another person, a confession has been made or the submission of a method of offense or defense, which would have an impact on the judgment, has been obstructed;
· if documents or other objects adopted as evidence for the judgment have been forged or fraudulently altered;
· if a false statement made by a witness, appraiser or interpreter, or a false statement made by a party or legal representative in the examination of the parties, has been adopted as evidence for the judgment;
· if a civil or criminal judgment, or other trial or administrative disposition on which the judgment has been based has, pursuant to another trial or administrative disposition, been changed;
· if a determination in respect of an important matter which would have an impact on the judgment has been omitted;
· if the judgment in respect of which a request for retrial is to be filed is contrary to a final and conclusive judgment that has previously been handed down; or
· if a party has, despite knowing the other party's address or residence, stated that he/she does not know the whereabouts of that party, or has filed a lawsuit by stating a false address or residence.
Request for Retrial by Third Parties
- A third party whose rights or interests have been infringed by a judgment revoking a disposition, etc. may, if due to a cause for which he/she is not responsible was unable to intervene in a lawsuit and was as a result unable to submit a method of offense or defense which would have an impact on the judgment, request a retrial in respect of a final judgment that has been made final and conclusive on these grounds (Article 31 (1) of the Administrative Litigation Act).
- A request for retrial shall be filed within 30 days of the date on which there is awareness of the final and conclusive judgment, and within one year of the date on which the judgment is made final and conclusive (Article 31 (2) of the Administrative Litigation Act).