The meaning of "when a final and conclusive judgment conflicts with a final and conclusive judgment rendered before filing a new trial" under Article 422 (1) 10 of the Civil Procedure Act, and whether two judgments are deemed to conflict with one another in case where both the judgment subject to new trial and the final and conclusive judgment are dismissed (negative)

Article 422(1)10 of the Civil Procedure Act provides that grounds for retrial under Article 422(1)10 of the same Act shall be established to avoid conflicts between res judicata of a judgment that is the object of retrial and res judicata of a final and conclusive judgment that is rendered prior to the final and conclusive judgment, and "where the final and conclusive judgment prior to the final and conclusive judgment that was rendered prior to the filing of a retrial conflicts with the final and conclusive judgment" refers to cases where the effect of a final and conclusive judgment previously rendered extends to the parties to the judgment subject to retrial, which conflict with both judgments. Meanwhile, res judicata effect of a final and conclusive judgment is limited to the part determined in conclusion in

Article 422(1)10 of the Civil Procedure Act

Supreme Court Decision 65Da934 Decided August 24, 1965 (No Publication in Official Gazette), Supreme Court Decision 94Da383 Decided August 26, 1994 (Gong1994Ha, 2518)

Hyundai Construction Corporation

Defendant Counterclaim Plaintiff and four others (Law Firm Taedong, Attorneys Li-gu et al., Counsel for the plaintiff-appellant)

Supreme Court Decision 97Da50527, 50534 Delivered on September 3, 1999

All of the appeals for retrial of this case are dismissed. The costs of retrial are assessed against the defendant (Counterclaim plaintiff).

Article 422(1)10 of the Civil Procedure Act provides that grounds for retrial under Article 422(1)10 of the same Act shall be established to avoid conflicts between res judicata of a judgment that is the object of retrial and res judicata of a final and conclusive judgment that is rendered prior to the final and conclusive judgment, and "where the final and conclusive judgment prior to the final and conclusive judgment is in conflict with that of a final and conclusive judgment rendered prior to the final and conclusive judgment," refers to the case where both judgments conflict (see Supreme Court Decision 94Da383, Aug. 26, 1994). Meanwhile, res judicata effect of a final and conclusive judgment is limited to the case determined in conclusion in the text of the judgment, and even if the grounds for dismissing the request of a plaintiff for retrial and explanation are different, if both of the final and conclusive judgments dismiss the request of a plaintiff for retrial (see Supreme Court Decision 65Da934, Aug. 2

Article 422(1)10 of the Civil Procedure Act provides that the gist of the Defendant (Counterclaim Plaintiff, Counterclaim Defendant, hereinafter referred to as “Plaintiff for reexamination”)’s assertion as the grounds for a request for reexamination on the ground of Article 422(1)10 of the Civil Procedure Act is that: (a) the Supreme Court Decision 97Da50534 Decided September 3, 199 (Supreme Court Decision 97Da50537 Decided 97Da50537 Decided September 3, 199, hereinafter referred to as “the Judgment for reexamination”); and (b) the Supreme Court Decision 94Da18577 Decided February 28, 195, which was rendered prior to the said judgment (hereinafter referred to as “final judgment”); (c) the Plaintiff (Counterclaim Defendant, Defendant for reexamination, hereinafter referred to as “Defendant for reexamination”); and (d) the effect of interruption of prescription due to the act of responding to the written reply by the first instance court (hereinafter referred to as “Defendant for reexamination”).

However, the above final and conclusive judgment was affirmed by the court below which rejected the claim of the defendant for new trial on the ground that the plaintiff's request for new trial as the plaintiff of new trial or counterclaim for the implementation of the procedure for ownership transfer registration on the ground of prescription and the execution of the procedure for ownership transfer registration on the ground of sale and purchase, and that the period for prescription has not expired, but all of the subsequent appeals were not accepted (the plaintiff of new trial stated only the grounds for objection as the grounds for final appeal, and did not state any grounds for objection as to the former judgment), and on the other hand, the decision of the court below which rejected the claim of new trial on the ground that the period for new trial was interrupted on the ground that the plaintiff's request for new trial was rejected as the plaintiff of new trial or counterclaim, and that the above final and conclusive judgment and the decision subject to new trial were dismissed on the grounds that the new trial did not conflict with the two judgments since the plaintiff's request for ownership transfer registration on the grounds of prescription period has not been accepted in the final and conclusive judgment (the decision of the court below which rejected the two grounds for final appeal as to the defendant's claim for new trial on the grounds for new trial.

Therefore, all of the appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yoon Jae-sik (Presiding Justice)