Whether the prohibition of re-instigation of a lawsuit under Article 240(2) of the Civil Procedure Act shall apply to a subsequent suit where the subject matter of the prior suit is a prior question (affirmative)

The provisions of Article 240(2) of the Civil Procedure Act are derived from the purpose of preventing the occurrence of an unfair situation, such as the deprivation of the litigation system, in the same dispute, in the purport that the State's efforts up to that point by voluntary withdrawal of action against the person who returned to vain and vain. Thus, the same lawsuit here does not necessarily have the same effect as in the case where the scope of res judicata effect or the prohibition of double lawsuit is applied to the same dispute. Therefore, even if the subject matter of lawsuit is identical to the parties, if the interests of the lawsuit are different even if the subject matter of lawsuit are identical to the parties, the latter cannot be deemed the same lawsuit. However, if the subject matter of lawsuit is a prior legal relationship or a premise of the prior lawsuit, even though the subject matter of lawsuit is different from the subject matter of lawsuit, the person who withdrawn the prior lawsuit after the final judgment on the merits cannot seek a judgment again as to the existence of rights or legal relations which were the object of

Article 240(2) of the Civil Procedure Act

[Plaintiff-Appellant] Daegu General Law Office, Attorney Kim Young-ro, Counsel for plaintiff-appellant-appellant

[Defendant-Appellee] Defendant 1 and 3 others (Attorney Seo Young-chul, Counsel for defendant-appellee)

Seoul High Court Decision 88Na8946 delivered on November 10, 1988

The original judgment shall be reversed, and the first instance judgment shall be revoked.

The instant lawsuit is dismissed.

All costs of a lawsuit shall be borne by the plaintiff.

Article 240(2) of the Civil Procedure Act provides that a person who withdraws a lawsuit after a final judgment has been rendered on the merits shall not bring an identical lawsuit. This is a provision that the State's efforts up to the time by voluntary withdrawal of the lawsuit would result in the same dispute against the person who returned to vain, and thus, for the purpose of preventing the occurrence of an unfair situation, such as the decline in the litigation system, after the same dispute arises again. Thus, the same lawsuit here does not necessarily mean that the scope of res judicata effect or the prohibition of double lawsuit is limited, and even if the subject matter of lawsuit is identical to the parties, if the interests of the lawsuit are different, it cannot be deemed the same lawsuit. However, if the subject matter of lawsuit differs differently from the subject matter of lawsuit, the plaintiff cannot seek the same judgment as the subsequent lawsuit in light of the purport and purpose of the above system in relation to the existence of rights or legal relations which were the object of the previous lawsuit, even though the subject matter of lawsuit is not different.

However, according to the records and reasoning of the original judgment, the plaintiff was in office as professor at the Gyeong Industrial College operated by the defendant, and was dismissed from the defendant on September 27, 1980, and the defendant was illegally dismissed from the Daegu District Court 80 Ma1335, which did not go through legitimate procedures despite the absence of a ground for dismissal, and filed a lawsuit for nullification of the above dismissal disposition against the defendant on August 14, 1981, which was ruled against the above court on the ground that the above dismissal disposition is valid, and the above disposition against the defendant was dismissed on August 14, 1981, and was dismissed on February 9, 1982. Since the plaintiff again filed the lawsuit of this case, it cannot be seen that the plaintiff did not have an obligation to pay damages to the plaintiff's retirement allowance or damages caused by the plaintiff's dismissal disposition to the 30th 9th 196th 7th 196th 198.

Nevertheless, the original judgment or the judgment of the first instance shall be deemed to be unlawful and unfair, so it is so decided as per Disposition by the assent of all participating Justices who reviewed the lawsuit in this case by cancelling the original judgment ex officio and cancelling the judgment of the first instance without having to make a decision on the Plaintiff’s grounds of appeal.

Justices Kim Yong-ju (Presiding Justice)