beta
(영문) 서울중앙지방법원 2017.11.15 2016가단5198256

양수금

Text

1. The Defendant’s KRW 34,077,155 and any of them,

A. As regards KRW 20,293,068, the full payment shall be made from July 27, 2001.

Reasons

1. The allegations and judgment of the parties

(a)as shown in the reasons for the attachment of the claim;

(However, ‘creditor' is regarded as ‘Defendant'. (B) The creditor is regarded as ‘Defendant'.

As to the Defendant’s assertion 1), the Defendant asserts that the period of five years, which is the period of extinctive prescription from the date of occurrence of each of the instant claims or from the date of the judgment in a prior suit, has expired. 2) Even in cases where a new suit based on the same subject matter as the judgment in a prior suit is exceptionally permissible due to special circumstances, such as interruption of prescription, the judgment in a new suit does not conflict with the final and conclusive judgment in a prior suit. Therefore, the court in a subsequent suit cannot re-examine whether the requirements for claiming the established right are satisfied.

Therefore, in order to dispute the right relationship of the previous suit in the subsequent suit, the Defendant should first file an appeal for a lawful completion of the final judgment in favor of the previous suit, and thus, the res judicata should be extinguished. This does not change on the ground that the service of the copy of the previous suit and the original copy of the judgment, etc. by service by public notice was not possible for the Defendant to bring an action against the previous suit.

(3) In light of the purport of the entire pleadings, the Plaintiff filed a lawsuit against the Defendant regarding each of the instant claims against the Gwangju District Court No. 2006Kadan59019, August 31, 2006 (hereinafter “the judgment in a prior suit”) by filing a lawsuit against the Defendant, and subsequently winning the Plaintiff in full (hereinafter “the judgment in a prior suit”) on August 31, 2006.

(1) The Defendant, on October 12, 2016, filed a final appeal against the judgment of the previous suit, but the date for pleading (if the Defendant was absent on two occasions at the Gwangju District Court 2016Na8554, May 29, 2017) is terminated as the withdrawal of appeal, and the judgment of the previous suit becomes final and conclusive as of September 23, 2006.

In addition, claims for which judgment has become final and conclusive are limited to the short term extinctive prescription.