Seoul Guarantee Insurance Co., Ltd. (Law Firm Hunamam, Attorney Hadong-gu, Counsel for defendant-appellant)

Defendant

December 13, 2017

Seoul Central District Court Decision 2016Gaso284576 Decided April 26, 2017

1. The defendant's appeal is dismissed.

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

1. Purport of claim

The defendant shall pay to the plaintiff 18,767,816 won and 5,263,018 won among them with 18,76% interest per annum from June 30, 2006 to the service date of a copy of the complaint of this case and 18% interest per annum from the next day to the day of complete payment.

2. Purport of appeal

The judgment of the first instance is revoked, and the plaintiff's claim is dismissed.

1. Facts of recognition;

(a) Conclusion of a guaranty insurance contract;

On December 195, the Plaintiff (the Korea Guarantee Insurance Co., Ltd.) entered into a sales guarantee insurance contract between the Co-Defendant of the first instance trial and the Nonparty, which covers Hyundai Motor Co., Ltd. (hereinafter referred to as the “On-site Motor”), the insurance amount of KRW 9,504,00, the insurance period from December 27, 1995 to December 26, 1997; and the payment guarantee of the installment payment of rocketing and other motor vehicles; and the Defendant guaranteed all obligations owed by the Nonparty to the Plaintiff under the said guarantee insurance contract (hereinafter referred to as the “instant guarantee insurance contract”).

(b) Payment of insurance proceeds;

Modern Motors claimed insurance money to the Plaintiff under the instant guarantee insurance contract, as the Nonparty did not pay the installment payment obligation three times, and the Plaintiff paid KRW 7,600,951 to the Hyundai Motor on July 23, 1996.

C. Action claiming indemnity

1) The Plaintiff filed a claim for reimbursement against the Nonparty and the Defendant with the Seoul Central District Court 96 Ghana439231, which became final and conclusive around April 8, 1997 by winning a favorable judgment, and thereafter received KRW 2,337,933 from the Plaintiff.

2) In order to extend the prescription period, the Plaintiff filed a lawsuit claiming the amount of reimbursement with Seoul Central District Court 2007Gada1135651, and rendered a decision of performance recommendation on February 1, 2007 that “the Plaintiff shall pay the amount calculated by the rate of 18% per annum from June 30, 2006 to the date of full payment” with respect to KRW 18,767,816 and KRW 5,263,018, whichever is earlier, to KRW 18% per annum from June 30, 2006 to the date of full payment, and became final and conclusive on February

[Ground of recognition] Facts without dispute, entry of Gap evidence 1 to 7, purport of the whole pleadings

2. Determination on the cause of the claim

According to the above facts of recognition, the defendant is jointly and severally liable with the non-party to pay to the plaintiff the amount of KRW 18,767,816 and the amount of KRW 5,263,018, whichever is the principal from June 30, 2006 to September 30, 2015, the agreed interest rate of KRW 18% per annum, and delay damages calculated at the rate of 15% per annum under the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings from the following day to the date of full payment.

The defendant asserts that the defendant does not bear any obligation under the guarantee insurance contract of this case since he did not know the non-party and concluded the joint and several guarantee agreement with the plaintiff.

Inasmuch as a final and conclusive judgment in favor of the Defendant has res judicata effect, in principle, the parties cannot file a new suit based on the same subject matter of lawsuit as the final and conclusive judgment, or in exceptional circumstances, such as interruption of prescription, a new suit is allowed exceptionally. In such a case, the judgment of a new suit does not conflict with the final and conclusive judgment in favor of the previous suit. As such, the court in the subsequent suit may not re-examine whether all the requirements are satisfied to assert the established right (see, e.g., Supreme Court Decision 2010Da61557, Oct. 28, 2010). As long as the existence of the claim for indemnity in the lawsuit claiming indemnity against the Defendant was confirmed, the grounds asserted by the Defendant are contrary to the res judicata effect of the final and conclusive judgment. Accordingly, the Defendant’s assertion in this part is not reasonable.

3. Conclusion

The plaintiff's claim is justified, and the judgment of the court of first instance is just, and the defendant's appeal is dismissed, and it is so decided as per Disposition.

Judge Lee Soo-soo (Presiding Judge)