[1] Where an identical subject matter of a lawsuit has been filed with the parties at a different time, but a lawsuit pending in the previous suit has not been extinguished due to withdrawal, rejection, etc. of the previous suit until the closing of argument in the previous suit (negative), whether the subsequent suit is legitimate (negative), and where a party who has received a final and conclusive judgment in favor of the parties in the previous suit files a new suit against the other party in the previous suit, whether there is a benefit in protecting the rights in the subsequent suit

[2] The case holding that in a case where Gap insurance company filed a lawsuit seeking the payment of the amount of indemnity against Eul after paying the insurance money under the small loan guarantee insurance contract concluded with Eul, and the appellate court asserted that Byung limited liability company acquired the claim from Eul company, and the judgment citing the entire claim of Byung was rendered and confirmed after Eul applied for intervention in succession, and Byung filed a lawsuit seeking the payment of the amount of claim acquired from Eul before the judgment was rendered, Byung company filed a lawsuit against Eul before the above judgment was rendered, Byung company's claim constitutes a double lawsuit, and the appellate court's judgment of the preceding

[1] A party may not institute a lawsuit again on a case pending before the court (Article 259 of the Civil Procedure Act). Therefore, in a case where a lawsuit involving the same subject matter of lawsuit has been brought differently with the parties, if the pending lawsuit is not extinguished by withdrawal, rejection, etc. by the time the previous lawsuit is closed until the closing of argument in the subsequent lawsuit, the subsequent lawsuit is unlawful as a lawsuit filed against the other party in violation of the prohibition of double lawsuit. Meanwhile, since a final and conclusive favorable judgment has res judicata effect, in a case where a party who has received a final and conclusive judgment in favor files a lawsuit against the other party in the previous lawsuit for the same claim as the final and conclusive judgment in favor

[2] The case holding that, in a case where Gap insurance company filed a lawsuit against Eul after paying the insurance money under the small loan guarantee contract entered into with Eul, and Byung filed a lawsuit claiming the payment of the amount of compensation against Eul, asserting that Byung acquired the claim from Eul company, and the judgment accepting the entire claim of Byung was rendered and confirmed in the appellate court, and Byung filed a lawsuit claiming the payment of the claim against Eul before the judgment was rendered, Byung company filed a lawsuit claiming the payment of the amount of the claim acquired from Eul before the judgment was rendered, Byung's claim would result in the same lawsuit with the parties, even though the finalized preceding case is still pending in the court, since the previous case is still pending in the court at the date of closing argument of the court below, which constitutes a double lawsuit, and the appellate court'

[1] Articles 216(1), 218, and 259 of the Civil Procedure Act / [2] Articles 216(1), 218, and 259 of the Civil Procedure Act

[1] Supreme Court Decision 87Meu1761 delivered on November 10, 1987 (Gong1988, 97) (Gong1988, 97) Supreme Court Decision 2005Da74764 Delivered on April 14, 2006

D&D Specialized Company (Law Firm Samil, Attorneys Lee Gyeong-hee et al., Counsel for the defendant-appellant)

Defendant

Daegu District Court Decision 2016Na7690 decided June 21, 2017

Of the part of the lower judgment against the Defendant, the part of damages for delay against KRW 19,250,816 and damages for delay against KRW 5,489,236 is reversed, and the judgment of the first instance as to this part is revoked, and this part of the lawsuit is dismissed. The remainder of the appeal is dismissed. The total costs of the lawsuit as to the dismissed part of the lawsuit are assessed against the Plaintiff, and

The grounds of appeal are examined.

1. The part of the Seoul Guarantee Insurance Co., Ltd.

This part of the lawsuit is lawful ex officio.

A. The following facts are revealed by the reasoning of the lower judgment and the record, or are obvious to this court:

(1) The Seoul Guarantee Insurance Co., Ltd. (hereinafter “Seoul Guarantee Insurance Co., Ltd.”) paid KRW 5,489,236 of the insurance amount in arrears of the Defendant to the Samsung Fire Insurance Co., Ltd. on November 21, 1997 according to the small loan guaranty insurance contract concluded with the Defendant (hereinafter “instant bonds”).

(2) The Seoul Guarantee Insurance filed a lawsuit against the Defendant seeking payment of the instant claim and its delay damages (hereinafter “prior case”). The first instance court of the prior case served the Defendant by means of service, such as a copy of the complaint and the date of pleading against the Defendant, and rendered a judgment accepting all the claims of the Seoul Guarantee Insurance on August 21, 2001 (hereinafter “the first instance judgment of the prior case”). The original judgment was served on the Defendant by means of service, and the appeal period has expired, and thus the first instance judgment of the prior case became final and conclusive in the form of October 26, 201.

(3) On May 13, 2005, the Plaintiff acquired the instant claim from the Seoul Guarantee Insurance Co., Ltd., and around June 16, 2005, notice of the transfer of the said claim was given.

(4) On November 15, 2016, the Defendant filed an appeal subsequent to the first instance judgment of the preceding case. On February 20, 2017, the Plaintiff asserted that the Plaintiff acquired the instant claim from the Seoul Guarantee Insurance and filed an application for intervention in succession. The appellate court of the preceding case accepted an appeal subsequent to the Defendant on August 11, 2017, and dismissed the first instance judgment and dismissed the claim for the Seoul Guarantee Insurance, and declared a judgment accepting the Plaintiff’s claim ( Busan District Court Decision 2016Na12820). The appellate court of the preceding case became final and conclusive on September 2, 2017 as the period of appeal expires.

(5) On June 28, 2011, the Plaintiff filed a lawsuit seeking the payment of the instant claim and its delay damages that was taken over from the Seoul Guarantee Insurance (hereinafter “instant lawsuit”). On May 24, 2017, the lower court rendered a judgment citing the remainder of the Plaintiff’s claim on June 21, 2017, excluding the part of the delay damages.

B. With respect to a case pending before the court, a party may not institute a lawsuit again (Article 259 of the Civil Procedure Act). Therefore, where a lawsuit involving the same subject matter of lawsuit is brought differently with the parties, the subsequent suit is unlawful as a lawsuit brought against the other party in violation of the prohibition of double lawsuit unless the pending lawsuit is extinguished by withdrawal, rejection, etc. by the time the previous suit is closed until the closing of argument in the subsequent suit. Meanwhile, since a final and conclusive judgment in favor of the party has res judicata effect, in a case where the party who received the final and conclusive judgment in favor of the party in favor files a lawsuit against the other party in the previous suit identical to the final and conclusive judgment in favor of the other party in favor of the previous suit, barring any special circumstance, the subsequent suit is unlawful as there is no benefit in protecting the rights (see, e.g., Supreme Court Decisions 87Meu1761, Nov. 10, 1987; 20

According to the foregoing factual basis, even though a prior suit is pending in the court, this part of the lawsuit is once again brought in the same lawsuit with the parties, and the prior suit is still pending in the court on May 24, 2017, which is the date on which the argument is concluded in the lower court. Furthermore, since the judgment of the appellate court of the prior suit became final and conclusive on September 2, 2017, it is unlawful as there is no benefit in the protection of rights. Nevertheless, the lower court did not dismiss this part of the lawsuit and rendered a decision on the merits. In so doing, the lower court erred by misapprehending the legal doctrine on double suit, thereby adversely affecting the conclusion of the judgment.

2. The part of the claim related to the ELD Card Co., Ltd.

The defendant filed an appeal on the part of the judgment of the court below on the claim related to EL Card Card Co., Ltd., but the grounds of appeal were not stated in the petition of appeal.

3. Conclusion

Of the part of the judgment below against the defendant, the part against the defendant as to 19,250,816 won and damages for delay as to 5,489,236 won, which constitute the part against the defendant's claim related to Seoul Guarantee Insurance, shall be reversed. Since this part is sufficient for this court to directly render a judgment, this part of the judgment of the first instance is revoked, and this part of the lawsuit shall be dismissed, and the remainder of the appeal by the defendant shall be dismissed, and the costs of the lawsuit shall be borne by

Justices Kim Chang-suk (Presiding Justice)