[1] In a case where it is allowed for a party to file a new suit based on the same subject-matter of a lawsuit as a final and conclusive judgment in favor of the party due to special circumstances, such as interruption of prescription, whether the court of the subsequent suit can re-examine whether all the requirements to assert the established right are satisfied

[2] In a case where Gap limited liability company filed a lawsuit claiming transfer money against Byung, the debtor Byung, after receiving the claim from Eul bank, and the judgment became final and conclusive at that time, and thereafter filed a lawsuit claiming transfer money against Byung in order to block the expiration of the extinctive prescription, the case holding that in the subsequent lawsuit, it is impossible to re-examine whether Eul bank notified Byung of the transfer of claim to Byung, and whether it satisfies the requirements for setting up against the transfer of claim, such as whether Eul bank notified Byung of the transfer of claim

[1] Since a final and conclusive judgment in favor of one party has res judicata effect, in principle, a party cannot bring a new suit on the basis of the same subject matter of lawsuit as the final and conclusive judgment, or in exceptional cases where there are special circumstances such as interruption of prescription, a new suit is exceptionally allowed. In such a case, the judgment in favor of the previous suit does not conflict with the final and conclusive judgment in favor of the previous suit. Therefore, the court in the subsequent suit cannot re-examine whether all the requirements to

[2] The case holding that in a case where Gap limited liability company filed a lawsuit claiming transfer money against Byung, who was transferred the claim from Eul bank, and the judgment was finalized around that time, and thereafter, it brought a lawsuit claiming transfer money against Byung in order to block the expiration of the extinctive prescription period, the case holding that in a subsequent suit filed for the interruption of the extinctive prescription period as long as Eul's claim against Byung became final and conclusive in the prior suit, it cannot re-examine whether Eul bank satisfied the requirements for setting up transfer of claim, such as notifying Eul bank Byung of the transfer of claim to Byung

[1] Article 216 of the Civil Procedure Act / [2] Article 216 of the Civil Procedure Act

[1] Supreme Court Decision 98Da1645 decided Jun. 12, 1998 (Gong1998Ha, 1880), Supreme Court Decision 2010Da61557 decided Oct. 28, 2010 (Gong2010Ha, 2176)

National Dental Fund (Law Firm Down, Attorneys Shin Byung-ju et al., Counsel for the defendant-appellant)

Defendant

Seoul Central District Court Decision 2017Na33079 Decided December 6, 2017

The part of the judgment below against the plaintiff is reversed, and that part of the case is remanded to the Panel Division of the Seoul Central District Court.

The grounds of appeal are examined.

1. As a final and conclusive judgment in favor of a party has res judicata effect, the parties can not institute a new suit based on the same subject matter as the final and conclusive judgment, in principle, or in exceptional circumstances, such as interruption of prescription, a new suit shall be exceptionally allowed. In such a case, the judgment in favor of the previous suit shall not conflict with the contents of the final and conclusive judgment in favor of the previous suit. Therefore, the court in the subsequent suit shall not re-examine whether all the requirements to assert the established right have been satisfied (see, e.g., Supreme Court Decisions 98Da1645, Jun. 12, 1998; 2010Da61557, Oct. 28, 2010).

2. According to the reasoning of the judgment below, the court below dismissed the plaintiff's claim as to the first claim of this case on the ground that it is not a legitimate transferee of the first claim of this case, since there is no evidence to support that the SC Bank Co., Ltd. (hereinafter referred to as the "Scin Bank") did not transfer the first claim of this case to a limited liability company specializing in the Scin primary securitization (hereinafter referred to as "Scin primary") and notified the defendant of the transfer of the transfer, and the plaintiff who was transferred before the transfer of the claim cannot be a legitimate transferee of the claim of this case.

3. However, according to the reasoning of the lower judgment and the record, the Seoul Central District Court Decision 2008Gau118548, which was brought against the Defendant by Ausfin Japan, was recognized as the first claim against the Defendant on June 4, 2008 and rendered a favorable judgment on June 2, 2008, and became final and conclusive at that time, and the fact that the Plaintiff, who was transferred the first claim prior to the transfer of the first claim, filed the instant lawsuit against the Defendant in order to prevent the completion of the extinctive prescription of the first claim, which became final and conclusive by the said judgment.

Examining these facts in light of the legal principles as seen earlier, inasmuch as the claim No. 1 of this case against the Defendant on the Blufin First of the Seoul Central District Court 2008Gada118548 claim, which was filed for the interruption of the extinctive prescription of the established claim, the court cannot re-examine whether the first claim satisfies the requirements for setting up against the assignment of claim, such as whether the first claim was notified to the Defendant on Blufin First of the fact that the first claim was transferred to the Defendant.

Nevertheless, the lower court rejected the Plaintiff’s claim as to the claim 1 of this case by re-examination as to whether the requirements for claiming the right established in the previous suit have been satisfied. In so doing, the lower court erred by misapprehending the legal doctrine on the effect of res judicata, thereby adversely affecting the conclusion of the judgment. The allegation contained in the grounds of appeal

4. Therefore, the part of the lower judgment against the Plaintiff is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Jae-hyung (Presiding Justice)