[양수금][미간행]
In a case where a judgment ordering payment within the scope of inherited property becomes final and conclusive as a qualified acceptance by an inheritor is recognized in a prior suit between the obligee and the inheritor with respect to a claim against the inheritee, whether the obligee may seek a judgment without reservation as to the scope of liability for the same claim by asserting, by a new suit, that the said judgment is incompatible with the qualified acceptance, such as the statutory simple acceptance, existing prior to the closing of argument in the previous
Article 1028 of the Civil Act
[Plaintiff-Appellant-Appellee] Specialized in [Law Firm Law Firm, Attorneys Park Jong-seok et al., Counsel for plaintiff-appellant-appellant]
Defendant 1 and two others
Suwon District Court Decision 2011Na28714 decided December 7, 2011
All appeals are dismissed. The costs of appeal are assessed against the Plaintiff.
The grounds of appeal are examined.
1. Regarding ground of appeal No. 1
When a judgment ordering payment within the limits of inherited property becomes final and conclusive as a qualified acceptance of an inheritor’s claims against an inheritee is recognized in a prior suit between the obligee and the inheritor in a prior suit between the obligee and the inheritor, the obligee’s claim against the inheritor that cannot be compatible with the qualified acceptance, such as the statutory simple acceptance, existing prior to the closing of argument in the previous suit that became the basis of the said judgment by a new suit is not permissible to seek a judgment without reservation as to the scope of liability for the above claims. This is because the subject matter of a prior suit directly exists and is equivalent to the existence and effect of the claim (an obligation), but the existence and effect of the qualified acceptance is also similar to that of the claim, and if the qualified acceptance is recognized, the reservation on the scope of liability is stipulated in the order, so the reservation on the existence and effect of the qualified acceptance shall have the effect equivalent to res judicata effect in the judgment on the previous suit on the existence and effect of the qualified acceptance. This legal doctrine also applies to both cases where the obligee’s claim
According to the reasoning of the judgment of the court below, with respect to the lawsuit in this case against the Defendants, who are the inheritors of the debtor, seeking the payment of the acquisition amount within the scope of inherited property and obtained the final judgment in favor of the debtor, again asserted the simple acceptance by the Defendants, and seeking the payment of the acquisition amount without reservation as to the scope of liability, the court below determined that the lawsuit in this case goes against the res judicata of the final judgment in the previous lawsuit on the ground
Although the legal principles based on the premise of the court below are different from the above legal principles as to res judicata, they are legitimate in its conclusion, it cannot be said that there is an error of law such as misunderstanding of legal principles affecting the judgment, as otherwise alleged in the ground of
2. Regarding ground of appeal No. 2
In this case where the court below rejected the plaintiff's lawsuit of this case, any claim regarding the propriety of the merits of the lawsuit cannot be a legitimate ground for appeal.
3. Conclusion
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.
Justices Min Il-young (Presiding Justice)