A. Whether res judicata effect of the subrogation lawsuit by the obligee A extends to the subrogation lawsuit by the obligee B who is a subsequent suit

B. The ground of res judicata and the ground of appeal

C. The legislative intent of Article 496 of the Civil Act and the prohibition of offsetting against the damage claim caused by gross negligence

A. In a case where a creditor has filed a lawsuit against a third party debtor by exercising a creditor's subrogation right, the judgment is effective only when the debtor has been aware of the fact that the lawsuit for subrogation has been filed for any reason, and in such a case, if the other creditor files a lawsuit based on the creditor's subrogation right against the same subject-matter of lawsuit, the other creditor shall be subject to res judicata effect of the previous lawsuit. However, if the debtor did not know of the fact that the lawsuit for subrogation was filed by the creditor who is the prior suit, the res judicata effect of the previous lawsuit does not extend to the

B. Whether a subsequent suit is subject to res judicata of a prior suit or not is a matter of ex officio investigation, and a party’s assertion on this matter is only the urging to make an ex officio action. Thus, even if the subsequent suit is judged only on the merits without explicitly determining the main defense against res judicata, it cannot be deemed as the grounds for appeal for a revocation of judgment, unless there is any ground for defense.

C. The legislative intent of Article 496 of the Civil Act prohibiting an offset against damage liability arising from an intentional tort is that if an offset against damage liability arising from an intentional tort is allowed, the person who committed the intentional tort would not be required to pay damages in reality due to the offset right, and thus, the victim of the intentional tort would not be able to receive actual repayment due to the offset right of the tortfeasor. Since it does not fit the concept of social justice, the victim's exercise of offset right does not fit the concept of social justice, thereby preventing the occurrence of the intentional tort and allowing the victim to receive actual repayment due to the intentional tort. In light of the legislative intent and the result of the above application, there is no need to interpret or extend the offset prohibition against damage liability arising from the intentional tort even from the damage liability arising from the gross negligence.

A.B. Article 204 of the Civil Procedure Act: Article 404 of the Civil Procedure Act; Article 265 of the Civil Procedure Act; Articles 496 and 750 of the Civil Act

A. Supreme Court en banc Decision 74Da1664 delivered on May 13, 1975 (Gong1975, 8458), 80Da2751 delivered on July 7, 1981 (Gong1981, 14160), 91Da23486 delivered on December 27, 1991 (Gong1992, 773) B. Supreme Court Decision 88Da25274, 25281 delivered on April 27, 1990 (Gong190, 1147) (Gong190, 1990), 90Da21589 delivered on November 23, 199 (Gong191, 172).

Plaintiff 1 and eight others, Plaintiffs Kim Jong-hoon, Counsel for the plaintiff-appellant

Gwangju Bank Law Firm Han-dong et al., Counsel for the defendant-appellant-appellee)

Seoul High Court Decision 92Na56065 delivered on September 24, 1993

The part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the Seoul High Court.

The grounds of appeal by the defendant and the defendant's attorney are also examined.

1. Whether or not the prohibition of double lawsuit has been violated;

According to the records, the judgment of the court of first instance which accepted the claim of the above plaintiffs as of May 10, 1989 by the above court of Gwangju District Court 88Gahap5930 on behalf of the non-party 1 and the non-party 2, who are other creditors of the non-party Yangyang Industrial Co., Ltd. (hereinafter referred to as the "non-party company"), and the judgment of the court of first instance which revoked the judgment of the above court of 89Na3235 on June 14, 1990 and dismissed the whole claim of the above plaintiffs. The judgment of the court of first instance became final and conclusive by the dismissal of the appeal as of February 8, 191 by the Supreme Court sentenced the non-party company's dismissal as of February 9, 191, and on the other hand, in subrogation of the non-party company to preserve their claims against the non-party company, it is clear that the plaintiffs of this case filed the lawsuit of this case as the above tort against the defendant.

When a creditor subrogation lawsuit is already pending in the court, if another creditor of the same debtor has filed a lawsuit based on the creditor's subrogation right against the same subject-matter of lawsuit in time, the lawsuit which has been pending later constitutes an unlawful lawsuit in violation of the principle of prohibition of duplicate lawsuit (see, e.g., Supreme Court Decision 88Meu25274, Apr. 27, 1990; Supreme Court Decision 93Da53092, Feb. 8, 1994). However, in this case, as recognized above, there is no reason to argue that the lawsuit of this case, which is a prior suit filed by other creditors than the plaintiffs, is pending before the lawsuit of this case by the plaintiffs, and as such, the lawsuit of this case, which is the subsequent suit, is not pending in the court. Thus, as seen earlier, there is no reason to argue that the lawsuit of this case is unlawful as it constitutes a duplicate lawsuit, regardless of the res judicata effect.

2. Res judicata and reversal of judgment

In a case where a creditor has filed a lawsuit against a garnishee by exercising a creditor's subrogation right, and has been ruled by a creditor, the judgment is effective only when the debtor knew of the fact that the lawsuit for subrogation is filed for any reason (see Supreme Court Decision 74Da1664 delivered on May 13, 1975; Supreme Court Decision 87Meu1180 delivered on February 23, 198). In such a case, if another creditor files a lawsuit based on the creditor's subrogation right of the same subject matter, the other creditor will be subject to res judicata effect of the previous lawsuit. However, if the debtor did not know of the fact that the lawsuit for subrogation is filed by the former creditor, the res judicata effect of the previous lawsuit cannot be affected by the subsequent lawsuit for subrogation of the creditor, which is the subsequent lawsuit filed by another creditor.

In this case where there is no evidence that the non-party company was aware that the lawsuit filed by the non-party 1 et al. by exercising the subrogation right is in progress, the res judicata effect of the above prior suit does not extend to the non-party company, which is the debtor, and therefore, it does not affect the lawsuit of this case filed by the plaintiffs by subrogation of the non-party company. Therefore, there is no

In addition, since the issue of whether a subsequent suit is subject to res judicata of a prior suit or not is an ex officio investigation, and the allegations by the parties thereto are nothing more than urgings to make an ex officio action, even if the court below judged only on the merits without expressly determining the defendant's main defense to the above main defense, unless the aforementioned defense is justified (see, e.g., Supreme Court Decision 88Meu25274, 25281, Apr. 27, 1990; Supreme Court Decision 90Meu21589, Nov. 23, 190).

Therefore, there is no reason to view that the judgment of the court below is erroneous in the misapprehension of legal principles as to res judicata of a creditor subrogation lawsuit and the omission of judgment as to the defense of principal safety.

3. Violation of the rules of evidence, incomplete deliberation, lack of reasons, and net order of reasons.

In light of the records, the defendant's representative, the administrator of the non-party company, for which the defendant was under reorganization proceedings, was in progress, could obtain permission from the court due to gross negligence in the course of business as a good manager pursuant to Articles 101 and 43 of the Company Reorganization Act, and act of disposal upon obtaining permission from the court, without obtaining permission from the court, as to the machinery and appliances of this case, which are owned by the non-party company and its affiliated buildings and their installed machinery and appliances. The machinery and appliances of this case were added to the collateral security list by providing the machinery and appliances of this case to the non-party company as additional collateral, and the machinery and appliances of this case were added to the collateral security list after the abolition of reorganization proceedings against the non-party company. All of the machinery and appliances of this case, including the machinery and appliances of this case, were sold to the non-party company with the non-party company's non-party company's new enforcement, and there was a tort against the non-party company as the employer of this non-party 3.

4. Legal principles as to Article 496 of the Civil Act

A. With respect to the defendant's defense of offset, the court below, under Article 496 of the Civil Code, provides that offset against a claim arising from an intentional tort shall not be legally permitted. The legislative intent of the above provision is to ensure that the victim of the tort is satisfied at the same time, and to prevent the occurrence of a tort, and in this sense, limited to intentional tort and tort by negligence is excluded in principle, but there are unclear difficulties in proving the intention or negligence as a subjective requirement (limited cases like willful negligence or negligence with awareness) or there is a burden of proof on the debtor who asserts the prohibition of offset. In addition, in light of the fact that the creditor intentionally conceals and commits any illegal act against the debtor, the legislative intent of the above prohibition provision is likely to be terminated, and that the serious negligence in the common sense of transaction cannot be seen as identical with the intentional negligence, it is justified to expand the offset against the claim for offset against the non-party's damage claim due to an intentional act equivalent to the above offset against the non-party 3.

B. The legislative intent of Article 496 of the Civil Act prohibiting a set-off against the damage claim caused by an intentional tort is generally set-off in principle in order to maintain fairness between the parties in the event both parties have a claim against the other party. However, if set-off against the damage claim caused by an intentional tort is allowed, even the person who committed the intentional tort would not be required to pay damages as a set-off right, which would cause retaliation tort, and the victim caused the intentional tort would not be able to receive actual reimbursement due to the tortfeasor's exercise of the right of set-off right, and therefore, would not comply with the social justice concept, thereby preventing the occurrence of the intentional tort and allowing the victim to receive actual reimbursement due to the intentional tort.

However, in the case of gross negligence, even if it is equivalent to intention, it is distinguished from intention in that it does not have any intention even if it is not intentional, and even if it is permitted to offset the damage claim caused by gross negligence, the creditor who has other claims cannot cause a tort by gross negligence (in case of intentional tort, it will be an intentional tort). Therefore, whether to allow offset against it by gross negligence does not have special relations with the prevention of occurrence of tort by gross negligence. In the case of tort caused by gross negligence, which is not intentional, the damage obligor caused by the tort has other monetary claims against the victim, and therefore, it cannot be said that it does not conform to the social justice concept even if the victim is not actually paid due to the extinguishment of mutual claim from the equal amount of offset.

In a case where the literal interpretation or logical interpretation of the provisions of the positive law of the civil law alone cannot resolve a realistic legal dispute or brings about a result that substantially reflects on the concept of social justice, the court can reasonably resolve the legal dispute by examining the legislative spirit of the positive law and draw up the result that is compatible with the concept of justice. However, in the case of Article 496 of the Civil Act, the prohibition of set-off against the damage claim caused by intentional tort cannot be said to have to be applied by analogy or expansion to the damage claim caused by gross negligence in light of the above legislative intent and the result of its application.

Therefore, by extensively interpreting Article 496 of the Civil Act that an offset against damage claim arising from a tort by gross negligence shall also be prohibited, and the court below rejected the defendant's objection to offset by set-off pursuant to Article 496 of the Civil Act shall be deemed to have committed an unlawful act that affected the conclusion of the judgment (see, e.g., Supreme Court Decision 74Da958, Aug. 30, 1974). Therefore, the appeal pointing this out is justified.

5. Conclusion

Therefore, the part of the judgment below against the defendant is reversed, and this part of the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Jong-sik (Presiding Justice)