2. The costs of appeal shall be borne by the Plaintiff.

Purport of claim and appeal

The first instance court.

A. On March 9, 2005, the Plaintiff filed a lawsuit against the Defendant on the same content as the purport of the instant claim (Seoul Western District Court 2004Gaso261803, hereinafter “instant prior suit”) and received a judgment that accepted the Plaintiff’s claim on March 9, 2005, and the said judgment became final and conclusive on April 8, 2005.

B. Although the Plaintiff applied for a payment order against the Defendant on April 13, 2015, the Plaintiff filed the instant lawsuit on August 18, 2015 because the original copy of the payment order was not served on the Defendant.

【Ground for recognition】 1; the purport of the whole pleading

2. Determination on the legitimacy of a lawsuit

A. Since a final and conclusive judgment in favor of one party has res judicata effect, where a party who has received a final and conclusive judgment in favor of one party files a lawsuit again against the other party to the previous lawsuit, the subsequent lawsuit is unlawful in principle as there is no benefit in the protection of rights. Provided, however, where it is obvious that the ten-year lapse period of extinctive prescription of a claim based on a final and conclusive judgment has expired, there

(2) In light of the above legal principles, the Plaintiff’s claim under the final and conclusive judgment on April 14, 2006 was already extinguished prior to the Plaintiff’s application for payment order and the performance of the same in a lawsuit against the Defendant, who is the other party to the instant previous suit, and thus, there is no benefit in the protection of rights. Moreover, the Plaintiff’s application for payment order on April 13, 2015, which is apparent from April 8, 2005, when the judgment on the instant previous suit became final and conclusive, was filed on April 13, 2015. Accordingly, the Plaintiff’s claim under the final and conclusive judgment on the instant previous suit has already become final and conclusive prior to the Plaintiff’s application for payment order and performance of the lawsuit, and thus, the benefit of lawsuit for interruption of prescription cannot be recognized.

B. Furthermore, the court should determine the lawfulness of the lawsuit based on the facts examined ex officio.