[2] In a case where it is allowed for a party to file a new suit based on the same subject-matter of lawsuit as a final and conclusive favorable judgment due to special circumstances, such as interruption of prescription, whether the court of the subsequent suit can re-examine whether all the requirements to assert the established right are satisfied (negative)

[3] Where the interest rate of delay damages under the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings differs after the judgment in favor of a winning party becomes final and conclusive, whether the previous judgment in favor of a winning party differs (negative), and whether the amount different from the previous judgment can be recognized as the plaintiff's credit amount by applying the interest rate under the Act on Special Cases Concerning the Promotion, etc.

[2] In principle, a party cannot file a new suit based on the same subject matter as that of a final and conclusive judgment, or in exceptional circumstances, such as interruption of prescription, a new suit is exceptionally allowed. However, in such a case, the judgment of a new suit does not conflict with the final and conclusive judgment in favor of the previous suit. Therefore, the court of the subsequent suit cannot re-examine whether all the requirements to assert the established right are satisfied.

However, the grounds for extinguishment of a claim, such as repayment, set-off, and exemption, which occurred after the closing of argument in the previous suit, are subject to examination in the subsequent suit, and the defendant, who is the debtor, may defend in the subsequent suit with the aforementioned grounds. However, the change of laws or precedents cannot be deemed to constitute a new ground

[3] Even if the interest rate of delay damages under the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings (hereinafter "the Act on the Promotion of Legal Proceedings") is changed after the judgment in favor of one party becomes final and conclusive, the effect of the judgment in favor of one party does not change, and the amount different from the judgment in favor of one party cannot be recognized as the amount of the plaintiff's claim by applying the interest rate under the Act on

1. As to the Defendant’s ground of appeal

Based on its stated reasoning, the lower court rejected the Defendant’s assertion that the extinctive prescription of the claim sought by the Plaintiff has expired since the interruption of prescription against the principal obligor does not extend to the Defendant

In light of the relevant legal principles and records, the judgment of the court below is just, and contrary to the allegations in the grounds of appeal, there were no errors in the misapprehension of legal principles as to the guaranteed debt and extinctive prescription, the violation of

2. Plaintiff’s ground of appeal

A. A final and conclusive judgment has res judicata effect as to the contents included in the text, and even in cases where a claim is required to be filed in advance based on the time the arguments are closed, a lawsuit seeking performance may be brought in the future. Therefore, insofar as the performance of the duty of payment is ordered in the text of the performance judgment within the period following the closing of arguments, res judicata effect as to the existence of the right of claim until the period included in the text thereof (see Supreme Court Decision 2009Da102452, Oct. 13, 201).

In principle, a party cannot file a new suit on the basis of the same subject matter of lawsuit as the final and conclusive judgment, or in exceptional circumstances, such as interruption of prescription, a new suit is exceptionally allowed. However, in such a case, the judgment of a new suit does not conflict with the final and conclusive judgment in favor of the previous suit. As such, the court in the subsequent suit cannot re-examine whether all the requirements to assert the established right are satisfied (see Supreme Court Decision 2017Da293858, Apr. 24, 2018).

However, the grounds for extinguishment of a claim, such as repayment, set-off, and exemption, which occurred after the closing of argument in the previous suit, are subject to the examination in the subsequent suit, and the defendant, the debtor, can defend in the subsequent suit proceedings for the said reasons (see Supreme Court Decision 2018Da24349, Jan. 17, 2019). However, any change in the law or judicial precedents cannot be deemed a new reason that occurred after the closing of argument in the previous suit (see Supreme Court Decision 98Da7001, Jul. 10, 1998).

Therefore, even if the interest rate of delay damages under the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings ("the Act on the Promotion of Legal Proceedings") is changed after the judgment in favor of one party becomes final and conclusive, the effect of the preceding judgment does not change, and the amount different from the preceding judgment can not be recognized as the amount of the plaintiff's claim by applying the interest rate under the amended Act on the Promotion of Legal Proceedings, unlike the previous judgment (see Supreme Court Decision 2003Da19572, Jul. 11, 2003).

B. According to the reasoning of the lower judgment and the record, the lower court’s judgment and the record revealed the following: (a) the Defendant filed a prior suit against the Defendant seeking the payment of the amount of indemnity against the Defendant; and (b) the judgment of the previous suit ordering the Plaintiff to pay 18% per annum on the principal amount of indemnity from December 30, 200 to October 18, 2002; and (c) the damages for delay calculated at the rate of 25% per annum under the Civil Procedure Promotion Act, which was in force from the following day to the date of full payment; and (d) the extinctive prescription of the claim established by the judgment of the previous suit was interrupted on April 13, 207; and (e) the Plaintiff re-extinctive prescription was resumed, and the Plaintiff filed an application for the instant payment order for the interruption of prescription on March 30, 2017.

C. Therefore, the court below shall order the payment of damages for delay calculated at the rate of 18% per annum from December 30, 2000 to October 18, 2002, and 25% per annum from the next day to the day of full payment, in accordance with the res judicata of the final and conclusive judgment in the previous suit, with the exception of the amount that the plaintiff was paid to the person who was paid the reimbursement after the closing of argument in the previous suit in this case. Unlike this, the court below shall not calculate damages for delay on the basis of the interest rate of 15% per annum, which is the interest rate under the amended Act on the Promotion of Civil Procedure after the closing of argument in the previous suit.

Nevertheless, the court below calculated damages for delay from October 19, 2002 to the date of full payment of the principal amount of the indemnity, and ordered the payment of damages for delay calculated based on the interest rate of 18% per annum, which is the agreed interest rate, instead of the interest rate of 25% per annum applied at the final and conclusive judgment of the previous suit, on the ground that new causes have occurred after the closing of argument in the previous suit and the res judicata of the previous suit

In so determining, the lower court erred by misapprehending the legal doctrine on res judicata, thereby adversely affecting the conclusion of the judgment.

D. Therefore, the part of the judgment of the court below against the plaintiff as to damages for delay from October 19, 2002 to the date of full payment with respect to KRW 368,847,389, among the judgment below, shall be reversed, and this part shall be sufficient to directly judge by the party members, and therefore, it shall be sold in accordance with Article 437 of the Civil Procedure Act as follows.

The defendant is obligated to pay to the plaintiff 368,847,389 won with 25% interest per annum from October 19, 2002 to the day of full payment. Thus, the plaintiff's claim for damages for delay during the above period shall be accepted on the ground of its reasoning. The judgment of the court of first instance is just in conclusion, and the defendant's appeal as to this part is dismissed on the ground that it is without merit.

3. Conclusion

Therefore, the part of the judgment of the court below as to the damages for delay is reversed, and the defendant's appeal is dismissed. The total costs of the lawsuit are assessed against the defendant. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Jong-hee (Presiding Justice)