A. In a case where a lawsuit between a creditor and an obligor and a subrogation lawsuit between a third party and an obligor are identical, whether a duplicate lawsuit is made (affirmative)

B. Whether a final and conclusive judgment between a creditor and an obligor affects a subrogation lawsuit between a third party and an obligor (affirmative)

C. Whether there is a ground for rescission prior to the closing of argument in the final and conclusive judgment conflicts with the expression of intent of rescission and res judicata (affirmative)

A. When a third party files a lawsuit against the debtor on behalf of the creditor during the duration of the lawsuit filed by the creditor against the debtor with the same debtor, both lawsuits are the same as the same lawsuit, and thus the latter is contrary to the prohibition of double lawsuit.

B. If the lawsuit filed against the debtor by a third party on behalf of the creditor and the existing lawsuit between the creditor and the debtor which has already been final and conclusive are substantially the same in substance, the above final and conclusive judgment also affects the lawsuit by exercise of creditor's right of subrogation.

C. Res judicata is a means of attack and defense that could have been asserted prior to the closing of argument in the previous suit, which is the same as the subsequent suit, so if the grounds for rescission existed prior to the closing of argument in the previous suit, even if the declaration of intent of rescission was made after the closing of argument in the previous suit

Article 234 of the Civil Procedure Act; Article 404 of the Civil Act; Articles 202, 204, 404, 505(2), and 202 of the Civil Procedure Act

Supreme Court Decision 76Da1313 delivered on October 12, 1976, 76Da688 delivered on March 13, 1979, 80Da473 Delivered on May 13, 1980

Plaintiff-Appellant Kim Yong-jin, Counsel for plaintiff-appellant

Defendant Nowon-gu, Counsel for the defendant-appellant

Seoul High Court Decision 80Na822 delivered on October 8, 1980

The appeal is dismissed.

The costs of appeal are assessed against the plaintiff.

The grounds of appeal by the Plaintiff’s attorney are examined.

Point 1, 3,

If a third party filed a lawsuit against the debtor on behalf of the same debtor pursuant to Article 404 (1) of the Civil Act, and the third party filed a lawsuit on the same ground as the plaintiff's claim, the two lawsuits shall be identical even if they were in substance, so the subsequent lawsuit shall conflict with the prohibition provisions of double lawsuit under Article 234 of the Civil Procedure Act (Supreme Court Decision 73Da351 delivered on January 29, 1974, Supreme Court Decision 76Da1313 delivered on October 12, 1976), and the judgment of the court of first instance that held that the plaintiff's right to share transfer of the forest of this case, which was made under the name of the defendant, was not satisfied with the judgment of the court of first instance on the premise that the plaintiff's claim for non-party 1 and the non-party 2's claim for non-party 1 and the defendant's claim for non-party 1 and the defendant's claim for non-party 2's non-party 1 and the defendant's claim for non-party 2's claim for revocation.

Point 2,

According to the records, the non-party company's non-party company's right to dispose of the non-party company's non-party company's non-performance of the right to dispose of the non-party company's non-performance of the right to dispose of the non-party company's non-performance of the right to dispose of the non-party company within six months since the non-party company's non-performance of the right to dispose of the non-party company did not lose its right to dispose of the non-party company's right to dispose of the non-party company's right to dispose of the non-party company and still remains effective at the date of pleading of August 29, 1979 (19.9.24). Thus, the court below's judgment (the judgment of the court of first instance) modified the non-party company's claim on behalf of the non-party company that the non-party company should claim for the non-party company's non-party company's non-party company's right to dispose of the plaintiff's non-party company, and it did not err in the judgment.

Point 4,

According to the judgment of the court below, the plaintiff's sales contract of November 11, 1967 concerning the forest land of 137,280 square meters (including this case) concluded between the non-party company and the defendant cannot be paid to the non-party company until April 15, 1968, because the plaintiff failed to pay the remaining amount of 20,000,000 won to the non-party company by the non-party company, which is the remaining payment date, by subrogation of the non-party company's statement on October 17, 1979. Thus, the registration of transfer of ownership in the defendant's name which was made on the ground of the above sale is null and void by the plaintiff's assertion that the transfer of ownership in the non-party company of 137,280 square meters (the above contract is null and void by the judgment of the court below as to the non-party company of this case's claim against the non-party company of this case's claim for the cancellation of the above sales contract's res judicata effect against the plaintiff's claim.

Point 5,

With respect to the agreement between the defendant and the non-party as stipulated in paragraph (3) of the above agreement, the court below rejected the plaintiff's conjunctive claim on the ground that the non-party company's share transfer registration for the forest land of this case was completed for a fixed period of six months from the date ( July 24, 1975) the non-party company reserved the share right for the forest land of this case and disposes of 500 won or more per square year, the remaining amount shall be paid to the defendant. The non-party company's ownership for the forest land of this case shall be defined as the non-party company. If the defendant company fails to dispose of the forest land within the above period, the ownership right for the forest land of this case shall be finally reverted to the defendant, and the above disposal right of the non-party company shall be lost due to the lapse of the above contract period. In light of the records, the court below's determination that the non-party company acquired the above disposal right of the non-party company of this case's 6th pleading and the defendant's right to transfer ownership of the defendant's share.

Point 6,

The theory of lawsuit cannot be deemed as a factual assertion with merit for the claim of this case, and it cannot be a legitimate ground for appeal as it newly asserts the grounds that the court below did not assert in the original trial. Ultimately, the appeal is dismissed as it is without merit, 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 Kang Jong-young (Presiding Justice)