[1] Whether it is permissible for the same party to file a subsequent suit for the same subject matter as that of the prior suit (negative), and whether to seek a judgment inconsistent with the existence of the legal relationship determined in the final and conclusive judgment in the prior suit by asserting in the subsequent suit the method of attack and defense that existed prior to the closing of argument in the prior suit against the res judicata of the final and conclusive judgment in the prior suit (affirmative)

[2] The case holding that in a case where Gap, after concluding a land purchase contract within the land transaction permission zone with Eul and Eul, filed a lawsuit against Eul, and the claim for the performance of the procedure for the registration of ownership transfer was dismissed, and the judgment accepting the claim for the performance of the procedure for the registration of land transaction transfer became final and conclusive, and where Gap did not claim the above land even after the land was revoked within the land transaction permission zone prior to the closing of argument, and the court of the previous lawsuit rendered a judgment on the premise that the above land was located within the permitted zone, and thereafter Gap filed a lawsuit against Eul, seeking the performance of the procedure for the registration of ownership transfer against Eul, after Gap obtained the

[1] The res judicata effect of a final and conclusive judgment extends to a judgment on the existence of legal relations alleged as a subject matter of a lawsuit, and thus, the same party’s filing of a subsequent suit against the same subject matter of a prior suit is not permissible as it conflicts with the res judicata effect of the final and conclusive judgment in the prior suit. Moreover, to seek a judgment inconsistent with the existence of legal relations determined in the final and conclusive judgment in the prior suit by asserting the means of attack and defense that existed prior to the closing of argument in the prior suit in the prior suit is contrary to the res judicata effect of the final and conclusive judgment in the prior suit. Moreover, it is difficult to ask whether the parties were negligent in not

[2] The case holding that in a case where Gap, after entering into a sales contract with Eul, entered into a land transaction permission zone with Eul, filed a lawsuit against Eul, claiming for the registration of ownership transfer against Eul, and the judgment accepting a claim for the execution of the procedure for the registration of land transaction transfer became final and conclusive after dismissing the claim against Eul, and even though Eul had already cancelled the land in the land transaction permission zone before the closing of argument, Gap did not assert such fact in the previous lawsuit, and the court of the previous lawsuit rendered a judgment on the premise that the said land is located within the land transaction permission zone, and thereafter Eul filed a lawsuit seeking the execution of the procedure for the registration of ownership transfer against Eul, after Gap was granted the land transaction permission, the subject matter of both the previous and the subsequent lawsuit is identical to the right to claim the registration of ownership transfer on the grounds of a sales contract, and the subsequent lawsuit cannot be allowed because it contradicts the res judicata effect of the final and conclusive judgment, and even if Gap did not assert it in the previous lawsuit due to the lack of knowledge that the sales contract was finally effective in the land transaction permission zone, it goes against the final and conclusive judgment in the previous lawsuit

[1] Article 216 (1) of the Civil Procedure Act / [2] Article 216 (1) of the Civil Procedure Act

[1] Supreme Court Decision 80Da473 delivered on May 13, 1980 (Gong1980, 12853) Supreme Court Decision 91Da24847, 24854 delivered on October 27, 1992 (Gong192, 3238)

Plaintiff (Law Firm Boo et al., Counsel for the plaintiff-appellant)

1. The term "the term "the term" means "the term "the term" means "the term or "the term" means "the term or "the term" means "the term or "the term" means "the term or

Seoul High Court Decision 2010Na85579 decided May 27, 2011

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. According to the reasoning of the judgment below and the records of this case, ① entered into a sale contract with the defendant on April 16, 2007 to purchase the land of this case at KRW 257,556,00 (hereinafter “instant sale contract”). ② At the time of the instant sale contract, the land of this case was located within the land transaction permission zone; ③ the judgment of the court of first instance was rendered on February 4, 2009 by filing a lawsuit against the defendant, such as a claim for ownership transfer registration; and the appellate court’s pleading was concluded on November 27, 2009 and the judgment was rendered on December 18, 2009, and the judgment became final and conclusive (hereinafter “former lawsuit of this case”), ④ The plaintiff did not claim for the land transaction registration of this case to the plaintiff on April 16, 2007 for the execution of the land of this case on the land of this case at KRW 300,000, the land transaction registration of this case was already cancelled on the ground of the final judgment.

2. The court below held that the lawsuit in this case does not conflict with the res judicata of the final and conclusive judgment of this case on the ground that the subject matter of the lawsuit in this case and the interest in the protection of rights arising from the filing of the lawsuit in this case are the same in the subject matter of the lawsuit in this case, but the plaintiff has the same interest in the protection of rights arising from the filing of the lawsuit in this case.

3. However, it is difficult to accept the above determination by the court below for the following reasons.

A. Since res judicata of a final and conclusive judgment affects a judgment as to the existence of legal relations alleged as a subject matter of a lawsuit, the same party’s filing of a subsequent suit against the same subject matter of a prior suit is not permissible as it conflicts with res judicata of the final and conclusive judgment in the previous suit. Moreover, to seek a judgment inconsistent with the existence of legal relations determined in the final and conclusive judgment in the previous suit by asserting the means of attack and defense that existed prior to the closing of argument in the previous suit in the subsequent suit as to the same subject matter of a lawsuit is contrary to res judicata of the final and conclusive judgment in the previous suit, and further, whether the parties did not have known of the means of attack and defense in the previous suit and whether there was negligence in not knowing such facts (see, e.g., Supreme Court Decisions 80Da473, May 13, 1980; 91Da2487, 24854, Oct. 27, 1992).

B. Examining the progress of the instant lawsuit in light of the aforementioned legal principles, the subject matter of the instant lawsuit and the subject matter of the instant lawsuit are identical to the claim for ownership transfer registration based on the instant sales contract. Therefore, the instant lawsuit cannot be permitted as it goes against the res judicata effect of the final and conclusive judgment of the instant lawsuit. Although the instant lawsuit is premised on the premise that the instant land is located within the land transaction permission zone, the instant lawsuit is premised on the premise that the designation of the land transaction permission zone for the instant land was revoked.

In addition, the circumstance that the instant contract was terminated in the land transaction permission zone and the instant contract was finally effective is a reason that existed before the closing of argument in the instant previous suit. Thus, even if the Plaintiff was unaware of such circumstance and did not make any assertion in the instant previous suit, it would be contrary to the judgment on the existence of legal relations in the instant previous suit by newly asserting it in the instant previous suit, i.e., seeking a judgment inconsistent with the judgment on the existence of the Plaintiff’s right to claim ownership transfer registration against the Defendant under the instant contract for sale and purchase, would be contrary to the res judicata effect

In addition, the Plaintiff obtained a land transaction permission on February 17, 2010, which was after the closing of argument in the previous suit of this case, and such permission was made after being excluded from the land transaction permission area due to the cancellation of the land in this case, and thus, it cannot be deemed a change of circumstances that affect the conclusion of this case.

4. Nevertheless, on the grounds indicated in its reasoning, the lower court determined that the instant lawsuit does not conflict with the res judicata effect of the final and conclusive judgment in the instant previous suit. This is erroneous in the misapprehension of the legal doctrine on res judicata, thereby affecting the judgment

5. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Poe-young (Presiding Justice)