In a case where a claim is dismissed on the ground of non-performance of the condition precedent in the trial proceedings and in a prior suit, whether a lawsuit may be brought again against the same claim if the condition has been fulfilled after the conclusion of the trial proceedings (affirmative)

In general, when a judgment becomes final and conclusive, the court or the party cannot make a judgment or assertion contrary to the final and conclusive judgment, but such final and conclusive judgment takes effect on the basis of the time of the conclusion of the fact-finding proceedings, which is the standard time, and thus, the res judicata effect of the final and conclusive judgment in the previous suit does not affect the case where a new ground arises thereafter. Even if a claim was dismissed on the ground of non-performance of the condition precedent in the previous suit, if the condition was fulfilled after the closing of argument, it can re-be prosecuted the same claim,

Article 202 of the Civil Procedure Act, Article 147 of the Civil Act

Supreme Court Decision 88Da3116 Decided September 27, 198 (Gong1988, 1336) Supreme Court Decision 98Da7001 Decided July 10, 1998 (Gong1998Ha, 2087)

Plaintiff (Attorney Lee Jae-soo et al., Counsel for the plaintiff-appellant)

Defendant (Attorney Ansan-won, Counsel for defendant-appellant)

Seoul District Court Decision 2000Na20587 Delivered on August 24, 2000

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

We examine the grounds of appeal.

1. On the first and second grounds for appeal

In general, a court or a party cannot make a judgment or assertion contrary to the final judgment when a judgment becomes final and conclusive, but such final and conclusive judgment takes effect on the basis of the time of the conclusion of arguments at the trial court, which is the standard time, and thus, it does not affect the res judicata effect of the final and conclusive judgment in the previous suit until a new ground arises thereafter (see Supreme Court Decision 98Da7001, Jul. 10, 1998). Therefore, even if a claim was dismissed on the ground of non-performance of the condition precedent in the previous suit, if the condition is fulfilled after the closing of arguments, then the same claim can be brought again, unlike the case of exercising the right of revocation or right of rescission

According to the facts and records of the judgment of the court below, the plaintiff filed a lawsuit against the defendant for the performance of the guaranteed obligation amounting to KRW 20 million on each letter prepared in the name of the defendant on February 4, 1996 (hereinafter referred to as the "exclusive suit"), and this court rendered a ruling of dismissal on February 2, 1999 on the grounds that there is no evidence to prove the authenticity of the defendant's signature as the guarantor, and the plaintiff did not file an appeal with the Seoul District Court 99Na18571 on March 1, 1998, and the plaintiff did not submit the plaintiff's written appeal to the court for the same period of 40,000 won each month (hereinafter referred to as the "agreement"), and the defendant did not withdraw the plaintiff's written appeal until March 19, 1998 on the ground that the plaintiff did not withdraw the plaintiff's written appeal until March 19, 198.

Therefore, it is true that the first instance judgment dismissing the Plaintiff’s claim due to the Plaintiff’s failure to file a final appeal against the judgment of the appellate court within the period of final appeal has become final and conclusive. However, inasmuch as the Plaintiff’s withdrawal of the previous suit after the closing of argument at the lower court and the fulfillment of the suspension conditions of the instant agreement occurs, even if the subject matter of lawsuit at the previous suit is identical to the prior suit, the benefit of protection of rights cannot affect the res judicata effect of the previous suit.

The lower court determined that the judgment of both the first and second instances of the previous suit was retroactively invalidated due to the Plaintiff’s withdrawal of the previous suit was erroneous by misapprehending the provisions of Article 239(2) of the remaining Civil Procedure Act, which affected the Defendant’s rejection of the previous suit, and thus, it cannot be deemed that the judgment contrary to the Supreme Court’s precedents as referred to in Article 3 subparag. 2 of the Trial of Small Claims Act was rendered. The lower court’s conclusion is justifiable in that the instant lawsuit was lawful, regardless of the final judgment of the previous suit, and rejected the Defendant’s main defense. Accordingly, this part of the grounds for appeal

2. On the third ground for appeal

The gist of this part of the grounds of appeal is that the lawsuit in this case is contrary to the principle of prohibition of re-instigation as stipulated in Article 240(2) of the Civil Procedure Act, and thus, it is contrary to the Supreme Court precedents in this respect, but it is also a mere assertion of misunderstanding of legal principles, and as seen earlier, there is no room to apply the principle of prohibition of re-instigation under Article 240(2) of the Civil Procedure Act

The ground of appeal disputing this issue is rejected.

3. Conclusion

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 Yoon Jae-sik (Presiding Justice)