[대여금][공2013상,852]
In special circumstances, such as interruption of prescription, where a new suit is allowed based on the same subject matter of lawsuit as a judgment that has become final and conclusive exceptionally, whether res judicata of the final and conclusive judgment in the previous suit should be extinguished by filing an appeal for subsequent completion, if the Defendant contests the legal relationship of the previous suit in the subsequent suit (affirmative), and whether the same applies even if the Defendant was unable to file a prior suit due to a cause not attributable to the Defendant due to service by public notice (affirmative)
In special circumstances, such as interruption of prescription, even where a new suit based on the same subject matter as a judgment that has become final and conclusive is allowed, the judgment of the new suit shall 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 the requirements for claiming the right established therein are satisfied. Therefore, in order for the Defendant to dispute the right relationship of the final and conclusive lawsuit in the subsequent suit, the res judicata should be extinguished by filing a lawful subsequent appeal against the final and conclusive judgment in favor of the previous suit. This does not change on the ground that the service of a copy, original copy, judgment, etc. of the previous suit by public notice was served, and thus the Defendant cannot bring the previous suit due to a cause not attributable to him
Articles 173(1) and 216 of the Civil Procedure Act
[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Han-sung, Attorneys Park Jong-soo et al., Counsel for plaintiff-appellant)
Jeju Bank, Inc.
Korea Asset Management Corporation (Law Firm LLC, Attorneys Kang Jong-chul et al., Counsel for the plaintiff-appellant)
Defendant 1 and one other (Attorney Choi Young-young, Counsel for the defendant-appellant)
Seoul Central District Court Decision 2012Na33463 Decided November 2, 2012
All appeals are dismissed. The costs of appeal are assessed against the Defendants.
The grounds of appeal are examined.
1. Regarding ground of appeal No. 1
The court below acknowledged the fact that the first instance court lawfully served the copy of the complaint of this case against Defendant 1 as his residence in accordance with the evidence of the judgment, and determined that the appeal of this case was unlawful on the ground that Defendant 1 was not negligent if Defendant 1 did not know of the progress of the lawsuit of the first instance court, it did not constitute a case where Defendant 1 was unable to observe the appeal period due to a cause not attributable to him.
In light of the relevant legal principles and records, the fact-finding and judgment of the court below are just and acceptable. Contrary to the allegations in the grounds of appeal, there were no errors in violation of logical and empirical rules.
2. Regarding ground of appeal No. 2
A. In special circumstances, such as interruption of prescription, where a new suit based on the same subject matter of lawsuit as the judgment that has become final and conclusive exceptionally is allowed, the judgment of the new suit does not conflict with the final and conclusive judgment rendered in favor of the previous suit. As such, the court of the subsequent suit cannot re-examine whether the requirements for claiming the established right have been satisfied (see Supreme Court Decision 98Da1645, Jun. 12, 1998, etc.). Therefore, in order to dispute the legal relationship of the previous suit in the subsequent suit, the res judicata should be extinguished by filing an appeal for lawful subsequent completion against the final and conclusive judgment in favor of the previous suit. This does not change on the ground that the original copy of the previous suit and the original copy of the judgment, etc. are served by service by public notice, and thus the Defendant could not have responded to the previous suit due to any cause not attributable to the Defendant.
B. According to the reasoning of the judgment below and the records, ① the judgment of the court of first instance rendered in favor of the plaintiff 2 after the plaintiff's complaint, etc. against the defendant 2 was served by public notice, and the original copy of the judgment was also served on the defendant 2 by public notice. ② The plaintiff filed the subsequent suit against the defendant 2 for the purpose of suspending the extinctive prescription of the claim based on the judgment of first instance which became formally final and conclusive. ③ The subsequent suit of this case also became final and conclusive in favor of the plaintiff 2 as the litigation procedure by public notice, ③ the plaintiff was in title, and the compulsory commencement order for the auction on the real estate owned by the defendant 2 was received as executive title; ④ The defendant 2 was served with the above compulsory commencement order on November 4, 201, while residing in a foreign country, and the plaintiff's subsequent suit was served on November 9, 201 by public notice, and the plaintiff 2 was still serving on the court of first instance after the final and conclusive judgment was served by public notice.
C. Examining these facts in light of the legal principles as seen earlier, Defendant 2’s legal representative was aware of the fact that the judgment of the court of first instance was served by public notice on April 26, 2012. Thus, the appeal filed by Defendant 2, who had resided in a foreign country at the time, after the lapse of thirty (30) days from the said time, shall be deemed unlawful. The circumstance where Defendant 2 had already filed an appeal for subsequent completion with respect to the final judgment of the subsequent suit of this case, which was rendered by public notice, by which Defendant 2 had already been served by public notice, may not affect such conclusion.
The judgment of the court below to the same purport is just, and there is no error by misapprehending the legal principles on the initial date of the period of appeal for the subsequent completion and the requirements for permission of appeal for subsequent completion.
3. Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Park Poe-dae (Presiding Justice)