[이혼,위자료][공1987.6.1.(801),812]
The case holding that there was an error of misapprehension of legal principles as to the final judgment of a foreign court
If a petitioner of the second instance filed a request for a trial containing the same contents as that of the second instance judgment against the counter-appellant and won the final judgment of the New York court, the court below should deliberate and decide whether the above final judgment satisfies the requirements for recognition in Korea and its validity, thereby failing to meet the requirements for protection of rights as a result of conflict with the res judicata of the judgment.
Article 203 of the Civil Procedure Act
[Defendant-Appellee] Attorney Yoon Jae-chul et al., Counsel for defendant-appellee
The respondent (Appellant for Anti-Appellant)
Seoul High Court Decision 85Reu62, 63 decided March 17, 1986
The judgment below is reversed and the case is remanded to Seoul High Court.
1. The second ground of appeal is examined.
According to the records, at the first instance court and the lower court, the respondent filed a request for a judgment on divorce, etc. with the State of New York of the United States against the claimant, and the other party's right to custody between the claimant and the respondent is against the respondent. The claimant shall pay consolation money in 300 each month and 200 each month each month in 2 years thereafter to the respondent, and the judgment becomes final and conclusive in domestic law as well as in its domestic law until the non-party's 21 life is 21 years, and the judgment becomes final and conclusive as the judgment of the court of the State of New York of the Republic of Korea became final and conclusive as it is alleged by the respondent.
The respondent's assertion is somewhat ambiguous, but it is not reasonable to purport that the above final judgment of the New York court was approved in Korea, that is, res judicata, etc., and thus, the court below should have deliberated and judged whether the petitioner's request for a trial of this case conflicts with res judicata of the judgment because the above final judgment satisfies the requirements of approval in Korea and its validity is recognized. It is erroneous that the court below erred by misapprehending the legal principles.
2. Meanwhile, as long as the above final judgment of the New York court which won the case was presented in this case by filing a request for a trial containing the same contents as the claim of this case against the claimant ex officio, the court below should have deliberated and judged whether the respondent's claim of this case did not meet the requirements for protection of rights because the above final judgment satisfied the requirements for approval in Korea and its effect should be recognized, and it did not reach this point of view that the court below erred by misapprehending the legal principles as to the validity of the final judgment of foreign court.
3. Therefore, without further proceeding to decide on other grounds of appeal, the part of the claimant's claim for main trial and the part of the respondent's claim for appellate trial among the judgment below are all reversed, and the case is remanded to the court below. It is so decided as per Disposition by the assent
Justices Yellow-ray (Presiding Justice)