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(영문) 부산지방법원 2020.11.27 2020나47748
의사표시의 진술을 구하는소
Text

The plaintiff's appeal is dismissed.

Expenses for appeal shall be borne by the plaintiff.

Purport of claim and appeal

The judgment of the first instance.

Reasons

1. The reasoning of the court’s explanation concerning the instant case is as follows, except for adding the following judgments, and thus, it is consistent with the reasoning of the judgment of the court of first instance. Thus, this is cited by the main sentence of Article 420 of the Civil Procedure

2. Additional matters to be determined.

A. The Plaintiff’s argument in the written reply dated 29, 2019, which was submitted by the Defendant, stated that “I will dismiss the instant claim because it conflicts with the res judicata of the final and conclusive judgment in a prior suit,” but the said written reply was forged as it was made by a person without authority, and thus, the court, as such, should not determine the assertion as to a demand for res judicata effect as stated in the said written reply.

B. 1) Determination 1) In a case where the existence of a right or legal relation which is disputed in a lawsuit is already disputed in the previous suit between the same parties and a final and conclusive judgment thereon exists, the parties cannot make any assertion contrary thereto, and the court may not make any judgment contrary thereto. The existence of a final and conclusive judgment above is an ex officio investigation, and the court should not ex officio investigate and determine it (see, e.g., Supreme Court Decision 2004Du10227, Oct. 13, 2006) even if the parties’ assertion is not asserted (see, e.g., Supreme Court Decision 2004Du1027, Oct. 13, 2006). In full view of the above evidence and the overall purport of oral argument, the lawsuit of this case and the lawsuit of this case No. 1 and the lawsuit No. 2 are the same subject matter of the lawsuit of this case

Furthermore, the existence or absence of such a final and conclusive judgment is an ex officio investigation, and the court should investigate and determine it ex officio, and even if the defendant's response on October 29, 2019 was forged as the plaintiff's argument, the court shall investigate and determine ex officio the existence or absence of a final and conclusive judgment.

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