The requirements for compulsory execution in accordance with the final and conclusive judgment to constitute abuse of rights and the subject of the burden of proving and proving that the contents of the final and conclusive judgment are contrary to the substantive legal relationship (=a person who claims abuse of rights and seeks to refuse compulsory execution)

When a judgment becomes final and conclusive, the existence of a claim subject to res judicata becomes final and conclusive, and the executory power takes effect accordingly. Even in cases where a right based on a final and conclusive judgment is exercised in good faith and the enforcement based on a judgment becomes abuse of rights, an executory obligor may seek the exclusion of enforcement by a lawsuit seeking objection. However, in light of the purport recognizing res judicata of a final and conclusive judgment for legal stability and the fact that a lawsuit seeking the revocation of a final and conclusive judgment is a matter of principle in order to exclude the effectiveness of a final and conclusive judgment, compulsory execution pursuant to a final and conclusive judgment should not be easily recognized as abuse of rights. For such recognition, there should be special circumstances such as where the content of a final and conclusive judgment is contrary to the definition of a substantive legal relationship and where the enforcement of a final and conclusive judgment is considerably unfair and it is clearly unreasonable to allow the other party to execute the final and conclusive judgment. Moreover, the fact that the contents of a final and conclusive judgment are contrary to the substantive legal relationship should be asserted and proved by a person who claims the interruption

Article 2 of the Civil Act, Articles 24 and 44 of the Civil Execution Act, Articles 216, 218, 288, and 451 of the Civil Procedure Act

Supreme Court Decision 96Da4862 Decided September 12, 1997 (Gong1997Ha, 3073), Supreme Court Decision 2013Da75717 Decided February 21, 2014 (Gong2014Sang, 677), Supreme Court Decision 2013Da82043 Decided May 29, 2014

Plaintiff 1 and one other (Attorney Choi Jong-min et al., Counsel for the plaintiff-appellant)

Defendant (Law Firm current, Attorneys Jeon Soo-hee et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2016Na2089029 decided May 18, 2017

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

1. Case history

A. 13 co-owners, including the plaintiffs, filed a lawsuit claiming partition of co-owned property against 34 other co-owners, including the defendant, (hereinafter "the plaintiffs in the judgment"), as Seoul Northern District Court 2007Gahap2477, Seoul Dongdaemun-gu, Seoul ( Address omitted), about 69m2 and 31m2 (hereinafter "the land in this case"). On August 13, 2009, the first instance court in the above case sentenced the judgment that the land in this case was divided in kind on August 13, 2009, and accordingly, the payment of the price to the defendants in excess of the co-owned share amount is equivalent to the part to which the plaintiffs in the judgment was divided (hereinafter "the judgment"). The part ordering monetary payment in the text of the judgment in this case "the plaintiffs shall pay money to each defendant at the rate of 5% per annum from the following day to the day of full payment."

B. Although the Plaintiffs and some of the Defendants appealed on the subject judgment, they only maintained the appeal of some of the Defendants in the subject judgment (hereinafter “Appellants in the subject judgment”) due to the withdrawal of appeal. The Seoul High Court rendered a judgment that ordered the auction division by modifying the subject judgment on August 17, 2012. However, the Supreme Court rendered a judgment that rendered an order to divide the auction on July 10, 2014 and reversed and remanded it. After that, the appellate court’s judgment that ordered the auction division on November 19, 2014 and January 15, 2015, where the appellate court continued to have dismissed the appeal in the order of the appellant, and thereby the litigation for the claim for partition of co-owned property was terminated.

C. On July 28, 2015, the Plaintiffs deposited KRW 81,915,047 as the principal deposit and deposited KRW 11,221 in the amount calculated by the rate of 5% per annum from January 16, 2015 to July 28, 2015 (hereinafter “the date of withdrawal of the appeal of this case”), and filed a lawsuit of objection of this case seeking the exclusion of executive force of the judgment.

2. The judgment of the court below

A. The court below held that the "this decision became final and conclusive" in the text of the judgment is reasonable to view that the 14th day of October 13, 2009 (hereinafter "the expiration date of the appeal period of this case") from the date when the original copy of the judgment was served on all the parties to the lawsuit claiming partition of co-litigants, and therefore, the amount of the money which the plaintiffs are liable to pay to the defendant according to the order of the judgment was calculated at the rate of 81,915,047 won and 5% per annum from October 14, 2009 to the date of complete payment, after the day when the judgment became final and conclusive.

B. However, on the following grounds, the lower court determined to the effect that compulsory execution on the part ordering the Plaintiffs to pay the amount calculated at the rate of 5% per annum from October 14, 2009 to January 15, 2015, which was the date of withdrawal of the appeal of this case, cannot be acceptable in light of the concept of fairness and justice, and thus, it cannot be permitted as abuse of rights.

(1) If the appeal is withdrawn, the legal principle that the judgment of the court of first instance retroactively becomes final and conclusive on the expiration date of the appeal period is based on the legal interpretation of litigation law to ensure the stability of litigation procedures and clarify the time limit of res judicata, and thus, it cannot be readily concluded that the initial date in which the damages for delay that the plaintiffs are liable to pay in substantive legal relations is the expiration date of the appeal period in light

(2) The “the day on which the judgment became final and conclusive” as of the initial date of the appeal is deemed to have set an indefinite term on the obligation to pay price compensation. As such, the obligor is liable for delay from the time when the obligor becomes aware that the due date has arrived (the latter part of Article 387(1) of the Civil Act). The initial date in which the obligor is liable for delay shall be January 16, 2015, following the date of withdrawal of the appeal in this case.

(3) The Supreme Court's decision is terminated as the withdrawal of appeal by the appellant who is a party to the dispute with the plaintiffs at the end of the dispute over about five years and three months from the expiry date of the appeal period of this case. As such, it is remarkably unfair that the plaintiffs should include damages for delay from the expiration date of the appeal period of this case to the withdrawal date of appeal due to external circumstances that cannot be decided and controlled, and should not be accepted in social life against justice and justice. If it is not so, on the ground of the withdrawal of appeal irrelevant to the plaintiffs' intent, the appellate court's decision after remanding the judgment of this case, and should bear damages for delay only after the decision became final and conclusive, and thus violates the principle of self-responsibility.

3. Judgment of the Supreme Court

A. When a judgment becomes final and conclusive, the existence of a claim subject to res judicata becomes final and conclusive and the executory power takes effect accordingly. Even in cases where a right based on a final and conclusive judgment ought to be exercised faithfully and faithfully, and where an enforcement based on a final and conclusive judgment becomes an abuse of rights, an executory obligor may seek the exclusion of enforcement by filing a lawsuit seeking objection. However, in light of the purport recognizing res judicata of a final and conclusive judgment for legal stability and the fact that a lawsuit seeking revocation is a matter of principle to exclude the effect of a final and conclusive judgment, compulsory execution pursuant to a final and conclusive judgment should not be easily recognized as an abuse of rights. For such recognition, special circumstances such as where the contents of a final and conclusive judgment are contrary to the justice and where it is clearly unreasonable to execute the final and conclusive judgment and allowing the other party to execute the final and conclusive judgment, it should be clearly against the justice and thus unreasonable to allow the other party to execute it (see, e.g., Supreme Court Decision 2013Da75717, Feb. 21, 2014).

B. We examine the judgment of the court below in light of the aforementioned legal principles.

As a lawsuit for partition of co-owned property, the court can divide the co-owned property in a reasonable manner at its own discretion, and when the judgment on partition of co-owned property becomes final and conclusive, the relationship between co-owners is changed as stated in the text of the judgment on partition of co-owned property immediately. The contents of the judgment are divided in kind between the plaintiffs and the defendants and allowing the plaintiffs of the judgment to own the land of this case independently, instead of allowing them to own the part as stated in the text, the amount equivalent to the value exceeding the original share owned by the plaintiffs of the judgment should be paid to the defendants. Thus

In addition, when the judgment on partition of co-owned property becomes final and conclusive based on the lawsuit on partition of co-owned property, co-owners shall acquire ownership as to each co-owner's divided part. It seems that the judgment ordered the plaintiffs to pay the additional dues from the day after the final and conclusive date of the judgment regarding the part ordering monetary payment of the land of this case. Therefore, it is difficult to view that it is remarkably unreasonable to allow the plaintiffs to enforce compulsory execution as to the additional dues from the day after the expiration date of the appeal period of this case to the withdrawal date of the appeal of this case.

Nevertheless, the lower court, on the grounds the same as indicated in its reasoning, determined that compulsory execution is not permissible as an abuse of rights. In so doing, the lower court erred by misapprehending the legal doctrine on the validity of final and conclusive judgment and the abuse of rights, thereby adversely affecting the conclusion of the judgment. The allegation contained in

4. 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 Ko Young-han (Presiding Justice)