[1] Requirements for compulsory execution based on a final judgment to constitute a tort

[2] In a case where the execution of a final and conclusive judgment constitutes an abuse of right, the granting of an objection (affirmative)

[3] Where execution of a final and conclusive judgment contrary to substantive legal relations is not allowed as abuse of rights

[1] When a judgment becomes final and conclusive, the existence of a claim subject to res judicata becomes final and conclusive and executory power takes place accordingly. Thus, in order to constitute a tort, special circumstances such as the acquisition of a final judgment different from the substantive legal relationship by unlawful means such as obstructing the involvement of the other party in the lawsuit or deceiving the court by false assertion, etc. In order to constitute a tort, the execution cannot be deemed to constitute a tort on the sole ground that the contents of the final judgment are simply contrary to the substantive legal relationship and are unfair and that the execution obligee was aware of the final judgment without such circumstances. Even if compulsory execution based on the acquired judgment constitutes a tort, in light of the purport recognizing res judicata effect of the final judgment for the legal stability of the parties or the purpose of seeking revocation by a lawsuit for retrial where there exist grounds for retrial exist in order to exclude the validity of the final judgment, the establishment of tort should not be easily recognized, and compulsory execution based on a final judgment should be limited to cases where the judgment was rendered in a state where procedural fundamental rights of the parties have been infringed or where the final judgment exists, such as grounds for retrial exist.

[2] Even if a right is based on a final and conclusive judgment, it shall be exercised in good faith and in a case where enforcement based on the judgment becomes an abuse of rights, the executory obligor may seek the exclusion of enforcement by filing a suit against objection.

[3] In a case where the contents of a final and conclusive judgment are contrary to substantive legal relationship, the execution is not allowed as an abuse of rights in a case where the execution of the final and conclusive judgment is clearly unfair and it is clearly contrary to the definition to allow the other party to receive the execution of the final and conclusive judgment, in full view of all the circumstances such as the nature and contents of the right which can be executed by the final and conclusive judgment, the circumstances leading to the formation of the judgment, the execution of the final and conclusive judgment to the execution

[1] Article 750 of the Civil Act, Articles 202 and 469 of the Civil Procedure Act / [2] Article 2 of the Civil Act, Articles 469 and 505 of the Civil Procedure Act / [3] Article 2 of the Civil Act, Articles 469 and 505 of the Civil Procedure Act

[1] Supreme Court Decision 90Da6576 delivered on February 26, 1991 (Gong1991, 1070), Supreme Court Decision 92Da18627 delivered on December 11, 1992 (Gong1993Sang, 447), Supreme Court Decision 95Da21808 delivered on December 5, 1995 (Gong1996Sang, 197) / [2/3] Supreme Court Decision 84Da572 delivered on July 24, 1984 (Gong1984, 1479), Supreme Court Decision 96Da4862 delivered on September 12, 1997 (Gong197Ha, 3073)

The lawsuits of the deceased Lee Ba-wheeled and six others

Defendant corporation

Daegu High Court Decision 98Na3390 delivered on May 14, 1999

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

The grounds of appeal are examined.

When a judgment becomes final and conclusive, the existence of a claim subject to res judicata becomes final and conclusive and executory power is generated accordingly. Therefore, in order to constitute a tort, special circumstances exist, such as that the party to a lawsuit interferes with the other party’s involvement in the lawsuit or deceptions the court by false assertion. Without such circumstance, the mere fact that the contents of a final and conclusive judgment are simply contrary to the substantive legal relationship and are unreasonable, and that the executor of a final and conclusive judgment was aware of it cannot be said to constitute a tort. Even if compulsory execution based on the acquired final and conclusive judgment constitutes a tort, the purport of recognizing res judicata effect of the final and conclusive judgment for the legal stability of the party or that execution of the final and conclusive judgment should be readily acknowledged in light of the fact that there is a ground for retrial in principle, and that compulsory execution based on the final and conclusive judgment should be limited to cases where the execution of the final and conclusive judgment is clearly contrary to the nature of the right and the content of the final and conclusive judgment, and thus, it cannot be deemed that the execution of the final and conclusive judgment should not be limited to cases where it becomes final and conclusive.

According to the reasoning of the judgment below, the court below held that the non-party 1 and the non-party 1 who was appointed as the representative director of the non-party 1 and the non-party 1 were not entitled to the above contract for the construction of this case from the non-party 6 non-party 9's non-party 1 and the non-party 6's non-party 9's non-party 9's non-party 1's non-party 9's non-party 9's non-party 9's non-party 9's non-party 9's non-party 9's non-party 9's non-party 9's non-party 9's non-party 6's non-party 9's non-party 9's non-party 9's non-party 9's non-party 9's non-party 6's non-party 9's non-party 9's non-party 9's non-party 9's non-party 9's non-party 9'.

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 Cho Cho-Un (Presiding Justice)