Law Firm Gyeong, et al., Counsel for defendant-appellant

Attorney Kim Jong-sung, Counsel for the defendant-appellant

The costs of appeal are assessed against the Defendants.

Of the judgment below, the "28,947,420 won" in 1.2(b)(3) shall be corrected to "28,947,419 won".

1. Case summary

According to the reasoning of the lower judgment, the following facts are revealed.

The Dong Name Industrial Development Co., Ltd. (hereinafter referred to as the "Dong Name Industrial Development") filed a lawsuit against Defendant 1, Defendant 2, and Nonparty 1 (hereinafter referred to as "Defendant 1, etc.") for the payment of the construction cost. The court rendered a judgment on July 21, 2004 that "the Dong name Industrial Development," Defendant 1 27,462,60 won, Defendant 2, Defendant 67,352,00 won, and Nonparty 1 paid 16,58,000 won, and 20% interest per annum from February 13, 2004 to the date of full payment, respectively." The above judgment became final and conclusive at that time (hereinafter referred to as "claim settlement amount of this case").

Non-party 2 filed a lawsuit against the development of the same trade name industry and received a final and conclusive judgment in favor of him/her. On March 11, 2014, the Plaintiffs received a claim for the said judgment from non-party 2 and filed a lawsuit against the development of the same trade name industry. On October 22, 2015, the court rendered a judgment that "the development of the same trade name" was 5% per annum from February 16, 2002 to November 21, 2005, 20% per annum from the next day to September 30, 2015, and 15% per annum from the next day to the date of full payment," and the said judgment became final and conclusive at that time (hereinafter referred to as "final and conclusive judgment").

The Plaintiffs indicated that the final and conclusive judgment of the previous suit is title, and applied for a seizure and collection order for the instant claim for the instant settlement amount, indicating that the debtor for the development of the title industry, Defendant 1, etc., were the third debtor, Defendant 1, etc., and the claims for the seizure and collection of the same industry were KRW 388,813,36 ( KRW 95,848,976 against Defendant 1, and KRW 235,069,521 against Defendant 2, and KRW 57,894,839 against Nonparty 1). The amount of the claims indicated as the claims to be seized and collected at the time of the seizure and collection constitutes the principal of the instant settlement amount claim and damages for delay incurred from February 13, 2004 until July 26, 2016. The court attached the above claims to Defendant 1, etc. of the same industry development, and served the collection order as the seizure and collection order (hereinafter referred to as “Defendant 1, etc.”).

On March 7, 2017, the Plaintiffs filed the instant lawsuit claiming the collection amount and its delay damages against Defendant 1, etc. according to the instant seizure and collection order. Meanwhile, Nonparty 1 died on May 15, 2017 during the instant lawsuit. Defendant 3, the spouse, made a qualified acceptance regarding the inherited property, and the children renounced their inheritance.

2. Whether the case constitutes double lawsuit or contravenes the principle of prohibition of re-instigation (Ground of appeal No. 1)

A. Article 259 of the Civil Procedure Act provides, “The parties to a case pending before a court shall not institute any lawsuit again.” In a civil lawsuit, the prohibition of double lawsuit is related to the requirements for a lawsuit, and it shall be determined at the time of closing arguments in the fact-finding court. As such, when the previous suit is pending due to the interruption of proceedings by the time of closing arguments in the previous suit, the subsequent suit does not violate the prohibition of double lawsuit (see, e.g., Supreme Court Decisions 97Da45532, Feb. 27, 1998; 2017Da23066, Nov. 14, 2017).

Article 267(2) of the Civil Procedure Act provides, “A person who has withdrawn a lawsuit subsequent to the final judgment on the merits shall not institute the same lawsuit.” This is a restrictive provision that is derived from the purpose of preventing unfair situations that abuse the system of a lawsuit by taking into account the same dispute as the withdrawal of a lawsuit. Here, “the same lawsuit” is not necessarily the same as “the scope of res judicata effect or prohibition of double lawsuit.” Even if the subject matter of a lawsuit is identical with that of a party, a lawsuit may be instituted again if there are justifiable circumstances that require an action without going against the purport of such provision (see Supreme Court Decisions 2009Da22037, Jun. 25, 2009; 2015Da1620, Apr. 13, 2017).

B. According to the reasoning of the lower judgment and the record, the following facts are revealed. Nonparty 2, the creditor of the development of the same name industry, received a separate claim attachment and collection order as to the instant settlement money claim on May 1, 2006, and filed a lawsuit against Defendant 1, etc. for the claim for the collection amount (hereinafter referred to as “the lawsuit for the collection of the first instance court”). The first instance court accepted all the claims against Defendant 2, and rendered a judgment dismissing the claim against Defendant 1 and Nonparty 1 on June 13, 2009. The part of the claim against Defendant 1 became final and conclusive on October 28, 2008, and the part of the claim against Defendant 2 and Nonparty 1 withdrawn from the appellate court on June 13, 2009.

Based on these facts, the Defendants asserted that the instant lawsuit and the prior collection lawsuit are identical to the subject matter of lawsuit, and in particular, the part of the claim against Defendant 2 and Nonparty 1, the inheritor, is unlawful against the prohibition of re-instigation. Accordingly, the lower court rejected the Defendants’ assertion on the ground that the Defendants’ assertion on the following grounds: “The first instance court did not constitute double-instigations, as the prior collection lawsuit had already been pending before the instant lawsuit was filed, and the Plaintiffs brought the instant lawsuit for the execution of the claim against the development of their own name industry, separate from the prior collection lawsuit, may be deemed to have accrued, and thus, it cannot be deemed that the benefit of protection of new rights is contrary to the

In light of the above legal principles, the lower court’s judgment is justifiable, and contrary to what is alleged in the grounds of appeal, did not err by misapprehending the legal doctrine on the prohibition of double filing or re-instigation of lawsuit, thereby adversely affecting the conclusion of the judgment, contrary to what is alleged in the grounds of appeal.

3. Whether damages for delay on the established interest claim accrue (ground of appeal No. 2)

The obligation for delay of a pecuniary obligation constitutes a damage liability arising from the delay of the monetary obligation, and the obligation with no fixed due date, and thus, an obligor is liable for delay from the time when the obligor receives a claim for performance from the obligee with respect to the obligation established for delay (see Supreme Court Decision 2009Da59237, Dec. 9, 2010).

As seen above, at the time of filing an application for the seizure and collection order of the instant claim, the Plaintiffs specified the principal of the instant claim for the settlement amount and the damages for delay incurred from February 13, 2004 to July 26, 2016 as the bonds to be seized and collected. The Plaintiffs filed the instant lawsuit by making the entire claim as the principal of the collection amount claimed by Defendant 1, etc. as the principal.

Examining these circumstances in light of the legal principles as seen earlier, since the damages for delay on the claims of this case, which are indicated as claims to be seized and collected at the time of application for the seizure and collection order, can be deemed as the final damages for delay, Defendant 1, etc. shall be held liable for delay from the time of receipt of the request for performance against

In the same purport, the lower judgment that determined that the damages for delay shall accrue from the next day after the delivery date of the complaint of this case concerning the whole claim subject to the seizure and collection order of this case is justifiable, and contrary to what is alleged in the grounds of appeal, the lower court did not err

4. Whether it constitutes a repayment to quasi-Possessor of a claim (ground of appeal No. 3)

The Defendants asserts as follows. Before Nonparty 2 transferred his claim to the Plaintiffs, he applied for an assignment order against Defendant 2 and Nonparty 1 and received the decision accordingly, Defendant 1, etc. paid money to Nonparty 2 via Nonparty 3. Accordingly, the claim for the instant settlement amount should be deemed to have been repaid to the same extent as the part thereof. Even if the assignment order is null and void, it has no effect as repayment.

Even if the performance is made, the performance should be recognized as performance to quasi-Possessors of the claim.

However, the lower court rejected the Defendants’ assertion on the following grounds. Although there is insufficient evidence to regard the delivery of money to Nonparty 3 as the repayment of the instant claim, even if otherwise, the assignment order received by Nonparty 2 as of May 1, 2006 and the assignment order issued by Nonparty 2 was null and void when the collection order overlaps with the seizure order issued by Nonparty 2 as of May 1, 2006, and thus, there is no effect of performance according to the above assignment order. Furthermore, in light of the following: (a) Defendant 1 et al. was served with the seizure and the collection order issued by Nonparty 2 before the delivery of the entire order by Nonparty 2; and (b) Defendant 1 et al. delivered money to Nonparty 3 while the prior collection lawsuit following the above collection order continued, it cannot be deemed that Defendant 2 and Nonparty 1 did not have repaid Nonparty 2 with the belief

Examining the reasoning of the lower judgment in light of the relevant legal doctrine, contrary to what is alleged in the grounds of appeal, the lower judgment did not err by misapprehending the legal doctrine on the validity of an assignment order and the repayment to quasi-Possessors of claims.

Meanwhile, even if the repayment made by Nonparty 1 and Defendant 2 to Nonparty 2 is null and void, the Plaintiffs asserted that the payment should be regarded as the repayment made to the quasi-Possessor of the claim, as the previous collection lawsuit instituted by Nonparty 2 was withdrawn and the relevant provisional seizure was revoked. Therefore, the Plaintiffs asserted that the payment should be regarded as the repayment made to the quasi-Possessor of the claim.

5. Whether concurrent performance defenses are recognized (Ground of appeal No. 5)

The Defendants asserted that the instant claim for the instant settlement amount and the defect repair amount for the industrial development of the same name, including Defendant 1, etc., were in the simultaneous performance relationship. However, the lower court rejected the allegation on the following grounds: (a) it is difficult to view that the instant settlement amount claim and the defect repair amount claimed by Defendant 1, etc. are in the bilateral contract payment relationship or in the performance relationship.

According to the records, in a lawsuit filed by the Dong name industry development to seek the payment of the instant settlement amount against Defendant 1 et al., Defendant 1 et al. does not have any indication that Defendant 1 et al. claimed that claims such as the defect repair amount are simultaneously performed with the above settlement amount claim, and it is difficult to find any direct evidence that Defendant 1 et al. possess claims such as the defect repair amount against the development of the Dong name industry.

Examining the reasoning of the lower judgment in light of the relevant legal principles and the aforementioned circumstances, the lower judgment did not err by misapprehending the legal doctrine regarding simultaneous performance, or by misapprehending the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the facts.

6. Whether the good faith principle is violated (Ground of appeal No. 6)

The Defendants asserted that the seizure and collection order of this case and the lawsuit of this case constitute an abuse of rights or are used as a means of anti-social legal act, in view of the following circumstances: (a) the Plaintiffs received claims for the settlement of this case solely from Nonparty 2 who was dementia at the time, and Defendant 1 et al. partly repaid to Nonparty 2.

However, the lower court rejected the Defendants’ assertion on the following grounds. Even if the assignment of claims between the Plaintiffs and Nonparty 2 is null and void, the validity of the instant claim seizure and collection order, which was based on the valid title, does not affect in principle. There is no circumstance to deem the said assignment of claims to constitute a crime subject to criminal punishment, and it is difficult to accept Defendant 1, etc.’s assertion on repayment. In light of these circumstances, it is insufficient to recognize that the execution based on the instant claim seizure and collection order is remarkably unfair and that it would be unreasonable to allow the other party to receive the said execution, thereby

Examining the reasoning of the lower judgment in light of the relevant legal principles and records, the lower judgment did not err by misapprehending the principle of good faith or the legal doctrine on abuse of rights, etc.

7. The remaining grounds of appeal (ground of appeal Nos. 3 and 4)

The remainder of the grounds of appeal is nothing more than disputing the selection of evidence and fact-finding, which belong to the lower court’s exclusive jurisdiction, and thus, cannot be a legitimate ground of appeal. Furthermore, in light of the record, the lower court did not exhaust all necessary deliberations and did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, as otherwise alleged in the grounds

8. Conclusion

The Defendants’ final appeal is dismissed in entirety as it is without merit, and the costs of appeal are assessed against the losing party. It is obvious that “28,947,420 won” of the judgment below is a clerical error of “28,947,419 won.” It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Jae-hyung

Justices Min You-sook

Justices Noh Tae-ok