[1] Whether a final decision on performance recommendation has res judicata effect (negative)

[2] Whether a lawsuit for quasi-examination under Article 461 of the Civil Procedure Act may be brought on the ground that there is a defect constituting grounds for a retrial for a final decision of performance recommendation (negative)

[1] Article 5-7(1) of the Trial of Small Claims Act provides that when a defendant does not raise an objection within a specified period, a decision to dismiss an objection becomes final and conclusive, or an objection is withdrawn, the decision to recommend performance shall have the same effect as a final and conclusive judgment. However, unlike Article 44(2) of the Civil Execution Act, Article 5-8(3) of the Trial of Small Claims Act, which limits the grounds for objection against a final and conclusive judgment (in the case of a judgment without holding any pleadings, subsequent to the final and conclusive judgment), provides that an objection against a request for a decision to recommend performance shall not be restricted pursuant to the above Civil Execution Act. As such, regarding a final and conclusive decision to recommend performance, the grounds arising prior to the final and conclusive decision may be asserted in a lawsuit seeking objection against a final and conclusive decision to recommend performance. In light of this, the purport of the aforementioned provisions of the Trial of Small Claims Act is to recognize incidental effects such as res judicata except for the effect of final and conclusive decision to recommend performance.

[2] The main purpose of the retrial under Article 451 of the Civil Procedure Act, which is applicable mutatis mutandis under Article 461 of the same Act, is to exclude the validity of a final judgment, such as res judicata, formation power, and enforcement power, which has become final and conclusive, as a means of filing an objection against a final and conclusive judgment, in a case where there is a serious defect constituting the grounds for retrial in the final and conclusive judgment, the revocation of the said judgment and an action already concluded to reinstate the lawsuit. Therefore, even if there is a defect constituting the grounds for retrial in the final and conclusive decision of performance recommendation that does not have res judicata effect, a lawsuit for quasi-deliberation under Article 461 of the Civil Procedure Act may not be instituted on the grounds thereof. A lawsuit for objection to a claim

[1] Articles 5-7(1) and 5-8(3) of the Trial of Small Claims Act, Article 44(2) of the Civil Execution Act / [2] Articles 451 and 461 of the Civil Procedure Act

[2] Supreme Court en banc Decision 93Da27, 34 delivered on February 14, 1995 (Gong1995Sang, 130)

Plaintiff

Defendant

Jeonju District Court Decision 2005Na7873 decided May 19, 2006

The appeal is dismissed. The costs of appeal are assessed against the Defendant (Quasi-Review Plaintiff).

The grounds of appeal are examined.

Unlike Article 44(2) of the Civil Execution Act, Article 5-7(1) of the Trial of Small Claims Act provides that the grounds for objection against a final and conclusive judgment shall have the same effect as a final and conclusive judgment in a case where the defendant fails to file an objection within a specified period, the decision of rejection of an objection becomes final and conclusive, or an objection is withdrawn. However, unlike Article 44(2) of the Civil Execution Act, Article 5-8(3) of the Trial of Small Claims Act, which limits the grounds for objection against a final and conclusive judgment to be arising after the closure of pleadings (in the case of a judgment without holding any pleadings, after the final and conclusive judgment is rendered), shall not be subject to any restriction as prescribed by the Civil Execution Act, with respect to the assertion of objection against a final and conclusive decision of performance recommendation, the grounds arising before the final and conclusive decision of performance recommendation may be asserted in a lawsuit of objection against the final and conclusive decision of performance recommendation. In light of this, the purport of the aforementioned provisions of the Trial of Small Claims Act is to recognize incidental effects

Meanwhile, the retrial under Article 451 of the Civil Procedure Act, which is applicable mutatis mutandis by Article 461 of the same Act, is mainly aimed at excluding the validity of the final judgment, such as res judicata, formation power, and enforcement power, in a case where there is a serious defect that constitutes the grounds for retrial in the final judgment, and the revocation of the final judgment and the emergency appeal method seeking a re-adjudication by restoring the lawsuit that has already been concluded, and the final judgment becomes final and conclusive (see Supreme Court Decision 93Da27, 34 (Counterclaim) delivered on February 14, 1995). Thus, even if there is a defect that constitutes the grounds for retrial in the final and conclusive decision of performance recommendation that does not have res judicata effect, it is not possible to file a lawsuit for quasi-deliberation under Article 461 of the Civil Procedure Act on such ground. A lawsuit for objection to a claim may only be filed in the event of filing

In the same purport, the court below's rejection of the lawsuit for quasi-examination of this case on the ground that the final decision of performance recommendation is not subject to quasi-examination is just, and there is no error of law by misunderstanding the legal principles as

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Young-ran (Presiding Justice)