상표 사용에 관한 사실관계를 심리한 상고심 판결의 적법성

A Study on Korean Supreme Court Case No.2004 HU 1809

Facts that become the basis for legal judgement had occurred before a legal suit was brought. Such facts cannot be changed or varied. Even the Supreme Court cannot draw a different conclusion from a lower court conclusion as to matter of facts. Matter of facts are not judged but discovered. Moreover, the Supreme Court does not have any rights to determine as to matter of facts. Even if the Supreme Court believed that the discovery of facts are not enough to draw a legal decision, the Court shall return the case to the lower court. In this point of view, Korean Supreme Court Case No. 2004HU1809 has an incurable fault. Worse than all, the reasons for the conclusion of the case are not proper or legitimate. The Supreme Court erred in that the discovery as to the facts were revered on the basis of her probability or possibility but not on the further factual evidences, that the issue date of the catalogues of the plaintiff was admitted without further supporting materials reversing the lower court discovery, and that the witness was construed as a mistake.