[2] The scope of the same effect as a final and conclusive judgment recognized in the mediation protocol, and the requirements for the denial of the conciliation in relation to rights other than the subject matter of a lawsuit where the conciliation is concluded

[3] The case holding that the conciliation established in a lawsuit for partition of co-owned property on the ground of termination of a partnership relation does not extend to the damage claim not entered in the protocol

[2] The same effect as a final and conclusive judgment recognized in the conciliation protocol extends only to the judgment on the existence of a legal relationship which is a subject matter of lawsuit. Thus, if the case has been referred to the conciliation and the conciliation has been concluded, the legal relationship is specified in the conciliation clause or is additionally stated after the claim is indicated in the conciliation protocol, barring special circumstances, and thus, the legal relationship becomes a subject matter of lawsuit according to the contents of the conciliation protocol.

[3] The case holding that the conciliation established in a lawsuit for partition of co-owned property on the ground of termination of a partnership relation does not extend to the damage claim not entered in the protocol

A conciliation is established upon entry of the matters agreed between the parties in the protocol, and the conciliation protocol has the same effect as a final and conclusive judgment, such as a protocol of judicial conciliation, and has the same effect as that of a final and conclusive judgment. If conciliation is concluded between the parties, the relationship of rights and obligations based on the previous disputing legal relationship is extinguished, and a new right and obligation relationship is established according to the content of conciliation (see Supreme Court Decision 2005Da32814, 32821, Jun. 29, 2006). The same effect as a final and conclusive judgment recognized in such conciliation protocol extends only to the judgment on the existence of a legal relationship which is a subject matter of lawsuit (see Supreme Court Decision 95Da32273, Jan. 24, 1997). Thus, if the conciliation is established after being referred to the conciliation while the conciliation is in the process, the legal relationship should be recognized as having become a subject matter of lawsuit by the content of the conciliation protocol by being specified in the provisions of the conciliation protocol or by being additionally stated after claims.

In light of the adopted evidence, the court below acknowledged the following facts: while operating an enterprise as a partnership, the plaintiff and the defendant raised a criminal complaint against the defendant from around October 2003, and the defendant thought that it is no longer possible to maintain a partnership with the plaintiff, and accordingly, the plaintiff filed a lawsuit of partition of co-owned property on February 9, 2004 against the plaintiff on the ground of termination of a partnership relationship with the plaintiff, and on July 28, 2004, the investigation was underway, the plaintiff and the defendant transferred the whole share of the defendant among the real estate owned by the plaintiff and the defendant to the plaintiff, and the name of the business registration was transferred to the plaintiff, and the tax and public charges related to the operation of the enterprise after January 1, 2004 shall be borne by the plaintiff, and as a result, the plaintiff paid 260 million won to the defendant the remainder of the defendant's claim, and thus, the parties concerned in the lawsuit was also subject to mediation of the dispute, such as embezzlement of each party's damage claim against the plaintiff.

However, barring any special circumstance, barring any special circumstance, it should be recognized that the legal relationship is specified in the conciliation clause or that the content of the conciliation protocol is a legal relationship, which is the subject matter of the lawsuit, even if the damage claim in the instant case did not have the subject matter of the lawsuit, and the validity of the said conciliation protocol is unclear, barring any special circumstance. Thus, it cannot be deemed that the damage claim in the instant case has the legal relationship, which is the subject matter of the lawsuit, as the subject matter of the lawsuit, because there is no entry as to the damage claim in the conciliation protocol or the indication of the claim in the conciliation protocol in the instant case and no special circumstance exists

Furthermore, according to the records, at the time of mediation, the defendant denied the embezzlement and did not specify the amount of embezzlement, and the plaintiff did not revoke the criminal complaint even after the mediation was completed, and the defendant was indicted for embezzlement and convicted. Thus, if the circumstances are the same, it shall be deemed that the defendant was the party's intention to exclude the damage claim of this case from the subject of dispute resolution.

Nevertheless, the court below determined otherwise that the damage claim of this case also has the effect of the above mediation protocol, and thus the damage claim of this case has expired. In so doing, the court below erred by misapprehending the legal principles as to the scope of validity of the mediation protocol, thereby affecting the conclusion of the judgment, the ground of appeal assigning this error is with merit.

Therefore, the judgment below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Hwang-sik (Presiding Justice)