Plaintiff

Defendant

March 15, 2018

Daejeon District Court Decision 2017Da4528 Decided November 29, 2017

1. The plaintiff's appeal is dismissed.

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

The judgment of the first instance is revoked. The defendant shall pay to the plaintiff 50 million won with 15% interest per annum from the day following the delivery of a copy of the complaint of this case to the day of complete payment.

1. Basic facts

A. Determination of compulsory adjustment ordering the Plaintiff to pay KRW 25,000,000 to the Defendant

1) On May 2, 2003, the Defendant concluded a real estate sales contract with the content of purchasing 64,136 square meters (hereinafter “instant land”) in Sung-nam-si, Sung-nam-si, which is owned by Nonparty 1 as the broker of the Plaintiff. After the conclusion of the above sales contract, the Defendant proposed to make an investment in the instant land to Nonparty 2, and received a total of KRW 133,200,000 as the down payment and the intermediate payment. However, on the ground that Nonparty 2 did not resolve access problems, the Plaintiff and the Defendant demanded the return of the said investment amount on November 21, 2003, Nonparty 2’s wife Nonparty 3 of Nonparty 1, including the investment principal of KRW 13,200,000 and the compensation for damages of KRW 50,000,000,000 (hereinafter “instant land”). The Defendant prepared a confirmation document with the content of “No. 31, 204”).

2) The Plaintiff filed a lawsuit against the Defendant seeking payment of KRW 70,00,000 for damages (see the Daejeon District Court Decision 2005Kadan10513, and the evidence No. 3) by asserting that the Plaintiff was unable to properly operate his/her business due to Nonparty 2’s demand for payment of the debt, upon the completion of the instant confirmation document (see the evidence No. 2055, Dec. 22, 2005). The above astronomical support is paid KRW 25,00,000 to the Plaintiff by March 10, 2006, but if so, the Defendant shall pay the unpaid amount to the Plaintiff by adding damages for delay at a rate of 20% per annum from the day following the date of payment to the date of full payment (hereinafter “instant compulsory adjustment decision”). The instant compulsory adjustment decision became final and conclusive on January 24, 2006.

B. Final decision ordering the Plaintiff to pay KRW 25,000,000 to the Defendant

On August 30, 2004, the Plaintiff filed a lawsuit against the Defendant seeking the return of the purchase price following the rescission of the purchase and sale contract of the Daejeon District Court on August 30, 2004 (Seoul District Court Decision 2006Kadan9930). The above case was proceeded by public notice, and the above astronomical support was decided on September 21, 2006, that “the Defendant shall pay to the Plaintiff 25 million won with interest of 20% per annum from September 9, 2006 to the day of full payment” (hereinafter “instant judgment”). The instant judgment became final and conclusive on October 11, 2006.

[Ground of recognition] Evidence Nos. 2, 3, Eul Nos. 3, 4, and 5, and the purport of the whole facts and arguments in this court

2. Summary of the plaintiff's assertion

The Plaintiff has a claim against the Defendant for compulsory adjustment of the instant case and for payment of KRW 50,00,000,000 as a sum of principal and interest pursuant to the instant decision. The Plaintiff did not perform compulsory execution with its title until now. Since each of the above claims is likely to extinguish the statute of limitations, the Plaintiff filed the instant lawsuit again.

3. Determination

A. Relevant legal principles

1) In general, a lawsuit involving the same right or legal relation as that of the prior suit for which a final and conclusive judgment in favor of one party has become final and conclusive shall be dismissed (see Supreme Court Decision 80Da1888, 1889, Mar. 24, 1981). However, in exceptional cases where a claim is filed with the same content as that of the prior suit, there are special circumstances where benefit of the lawsuit exists. Thus, filing a lawsuit for the same interruption of extinctive prescription is permissible in cases where the right by a final and conclusive judgment takes place (see Article 165 of the Civil Act). (See Supreme Court Decision 99Da26979, Feb. 9, 2001).

2) Since res judicata is not for the benefit of an individual party, but for the sake of ensuring legal peace and legal stability by dispute resolution and stability of the people's legal life, the court shall investigate and determine ex officio the existence of a final and conclusive judgment, even if there is no assertion by the parties (see Supreme Court Decision 92Nu977 delivered on April 27, 1993).

B. Determination

1) We examine the instant case ex officio. Article 165(1) of the Civil Act provides that, even if a claim established by a judgment falls under the short-term extinctive prescription, the extinctive prescription shall be ten years, and Article 165(2) of the Civil Act provides that, the same shall apply to a claim established by a compromise in court, conciliation or any other process having the same effect as the judgment, and Article 165(3) of the same Act provides that, at the time of the final judgment, the provisions of Article 165(2) of the same Act provide that,

2) The instant compulsory adjustment decision finalized on January 24, 2006 determined that the Defendant shall pay to the Plaintiff KRW 25,000,000,000 as of March 10, 2006 and shall pay damages for delay if delay is delayed. In light of the above, the Plaintiff appears to have not been able to exercise the claim for payment of the money determined by the instant compulsory adjustment decision against the Defendant before March 10, 2006. Thus, it is reasonable to view that the payment period for the obligation to pay KRW 25,00,000 as stipulated in the said compulsory adjustment decision is March 10, 2006, which is after the date when the payment period becomes final and conclusive.

Meanwhile, as seen earlier, the instant judgment became final and conclusive on September 21, 2006.

The record reveals that the lawsuit of this case was filed on March 10, 2006 and April 28, 2017 after the lapse of ten years from September 21, 2006, when the Plaintiff was able to exercise the Plaintiff’s right (see Article 166(1) of the Civil Act). There is no evidence suggesting that the Plaintiff took measures to suspend the interruption of the extinctive prescription of the claim, such as the seizure against the compulsory adjustment decision of this case or the judgment of this case as the executive title.

3) Comprehensively taking account of the above circumstances, it is reasonable to view that the instant compulsory adjustment decision sought by the Plaintiff and the claim for damages for delay totaling KRW 50,000,000, and damages for delay under the instant decision had already expired by prescription before the instant lawsuit was filed.

Therefore, the instant lawsuit is unlawful as it is difficult to view that there is a benefit to seek the interruption of prescription, since it is a lawsuit whose rights and legal relations identical to each prior suit, such as having received a final judgment in favor of the winning party or having received the same judgment.

4. Conclusion

Therefore, the lawsuit of this case shall be dismissed as unlawful. As a result, the judgment of the court of first instance is just in its conclusion, and the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.

Judges Kim Yong-deok (Presiding Judge)

1) At the time of concluding a real estate sales contract, the lot number was changed thereafter and the land was divided.