[1] In a case where a judgment on the merits of a lawsuit of demurrer against distribution became final and conclusive, whether res judicata takes place in the judgment on the existence of substantive right to receive dividends on the dividend amount to which an objection was raised (affirmative)

[2] In a case where a party who was rendered a judgment on the merits against a lawsuit of demurrer against distribution files a lawsuit claiming return of unjust enrichment against the other party on the amount of dividend established in the judgment on the merits after the judgment on the merits became final and conclusive, whether the right to receive dividend can be judged differently from the judgment on the merits (negative)

[1] When the judgment on the merits of a lawsuit of demurrer against the distribution filed by the creditor became final and conclusive, the judgment on the existence of substantive right to receive dividends as to the dividend amount raised by the creditor becomes res judicata effect.

[2] In a case where the party against whom a judgment on the merits of a lawsuit of demurrer against distribution was rendered final and conclusive and thereafter files a lawsuit seeking return against the other party on the grounds that the amount of distribution established by the judgment on the merits of the lawsuit of demurrer against distribution is unjust enrichment, the parties concerned cannot make any assertion different from the judgment on the merits of the lawsuit of demurrer against distribution, as to the existence of the right to receive dividends, in determining whether the existence of the right to receive dividends determined in the judgment on the merits of the lawsuit of demurrer against distribution has been established or not, and the court may not make any other judgment.

[1] Articles 202(1) and 595 of the Civil Procedure Act / [2] Articles 202(1) and 595 of the Civil Procedure Act

National Port Trade Union Incheon Port Trade Union (Attorney Lee Jae-hwan, Counsel for the plaintiff-appellant)

Seoul High Court Decision 201Na11448 delivered on May 1, 201

Seoul High Court Decision 97Na56688 delivered on December 8, 1998

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined.

When a judgment on the merits of a lawsuit of demurrer against a distribution filed by a creditor becomes final and conclusive, res judicata becomes effective in the judgment on the existence of substantive right to receive a dividend as to the dividend amount raised by the creditor. In case where the party who has received the judgment on the merits against the lawsuit of demurrer against a distribution in the lawsuit of demurrer against the distribution files a lawsuit seeking the return against the other party on the grounds that the amount of dividends established by the judgment on the merits became final and conclusive and conclusive after the judgment on the merits became final and conclusive, the prior question is in determining whether the existence of the right to receive a dividend determined in the judgment on the merits of the lawsuit of demurrer against a distribution has been established or not, so the parties cannot make any assertion different from the judgment on the merits of the lawsuit of demurrer against the distribution, and the court cannot make any decision different from

According to the reasoning of the judgment of the court of first instance as cited by the court below, since 526m2 of the above land for religion (hereinafter "land of this case") was established on July 10, 1991 on the non-party 1, 190,000 won, and the debtor was registered as the non-party 1 and the non-party 1 corporation, and the non-party 6 corporation was registered as the non-party 1 and the non-party 1 corporation. On February 28, 1994, the non-party 6 corporation filed an application for an auction of the non-party 1 and the non-party 3 corporation for distribution of the above land of this case to the plaintiff on May 24, 1994 on the non-party 1 as the non-party 1 corporation and the non-party 6 corporation's non-party 3 corporation's non-party 5m2's non-party 1, who was entitled to receive dividends from the above non-party 1 corporation. The above court of this case was awarded to the non-party 3 corporation's dividends.

In light of the above legal principles, the res judicata effect of the judgment on the merits against the plaintiff in a lawsuit of demurrer against the distribution is also effective in the lawsuit of this case claiming that the plaintiff is unjust enrichment of KRW 305,364,602 against the plaintiff in the lawsuit of demurrer against the distribution. Thus, it is not possible to make a judgment different from the judgment on the merits of the lawsuit against the plaintiff against the plaintiff that the plaintiff was not the plaintiff, but the plaintiff, the right to receive the substantive dividend of the dividend amount, and therefore, it shall not be deemed that the dividend amount of the lawsuit against the plaintiff was distributed to the plaintiff to the plaintiff.

In the same purport, the judgment of the court below that dismissed the plaintiff's claim of this case on the ground that the res judicata effect of the judgment on the merits against the plaintiff in a lawsuit of demurrer against the distribution extends to the lawsuit of this case, which cannot be judged differently against the above judgment is just and there is no error of law by misunderstanding the legal principles as to the objective scope of res judicata as alleged in the ground of appeal.

The grounds of appeal on this point cannot be accepted.

In addition, as long as the judgment of the court below that res judicata of the judgment on the merits against the plaintiff in a lawsuit of demurrer against the distribution extends to the lawsuit of this case, the validity of the judgment of the court below on the premise that res judicata of the judgment does not extend to the lawsuit of this case shall not affect the conclusion of the judgment. Therefore, the ground of appeal that the above family judgment erred in violation of the rules of evidence, such as the allegation, cannot be accepted

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 on the bench.

Justices Lee Im-soo (Presiding Justice)