In a case where the ten-year period of extinctive prescription of a claim based on a final and conclusive judgment is imminent, whether there is benefit in a lawsuit in re-instigation of a suit for interruption of prescription (affirmative)

As res judicata effect exists in a final and conclusive judgment in favor of one party in which a final and conclusive judgment in favor of one party in favor of one party in a lawsuit again files a claim identical to the previous suit in which a final and conclusive judgment in favor of the other party in the previous lawsuit, barring any special circumstance, the subsequent suit is unlawful as there is no benefit in the protection of rights. However, in exceptional cases where ten-year extinctive prescription period of a claim based on a final and conclusive judgment is too excessive,

This is because the benefit of the protection of rights is not recognized in light of res judicata effect of a final and conclusive judgment to bring a lawsuit again in the same lawsuit without the ten-year lapse of the extinctive prescription period of the claim after the judgment in favor of the winning party becomes final and conclusive, but because there is a need to extinctive prescription in the event the period is imminent, the benefit of the lawsuit to bring a subsequent suit

Meanwhile, given that the judgment in a subsequent suit for the interruption of extinctive prescription cannot conflict with the final and conclusive judgment rendered in favor of the previous suit, the court in the subsequent suit cannot re-examine whether all the requirements to assert the established right are satisfied, but res judicata of the judgment in the subsequent suit takes place at the time of the closing of argument in the subsequent suit. As such, the grounds for extinguishment of a claim, such as repayment, offset, exemption, etc. arising after the closing of argument in the prior suit, are subject to examination in the subsequent suit. Therefore, the Defendant, a debtor, can make a defense in the subsequent suit, and if such assertion is acknowledged as a result of a trial, the court shall dismiss the Plaintiff’s claim

In light of the purport of deeming that the benefit of protecting the rights of subsequent litigation for the interruption of extinctive prescription is different depending on whether the period of extinctive prescription period of a claim established by a judgment is imminent, and the effect of the completion of extinctive prescription of a claim, etc., a court which examines a subsequent suit for the interruption of extinctive prescription may not recognize the benefit of re-instigation of a lawsuit for the interruption of extinctive prescription, barring any special circumstance, such as where the cause for interruption of extinctive prescription is interrupted because the extinctive prescription has been interrupted after the judgment in a prior suit became final and conclusive, and the cause for interruption of extinctive prescription cannot be recognized as not being 10 years after the judgment in a prior suit became final and conclusive, the subsequent suit shall not be dismissed merely because there is no benefit of lawsuit, and the judgment on

Articles 165, 168 subparag. 1, 170, and 178 of the Civil Act; Articles 216, 218, and 248 of the Civil Procedure Act / [Institution of Lawsuit]

Supreme Court en banc Decision 2018Da22008 Decided July 19, 2018 (Gong2018Ha, 1708) (Gong208) Decided November 10, 1987

Plaintiff

Defendant

Daejeon District Court Decision 2017Na8591 Decided March 29, 2018

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

ex officio deemed.

1. Since a final and conclusive judgment in favor of a person has res judicata effect, where a party who has received a final and conclusive judgment in favor of the said person files a lawsuit against the other party to the previous suit identical to a claim in the previous suit in favor of the said person, barring any special circumstance, the subsequent suit is unlawful as there is no benefit in the protection of rights. However, barring any exceptional circumstance, in a case where the ten-year period of extinctive prescription of a claim based on a final and conclusive judgment is imminent, there is benefit in the lawsuit for interruption of prescription (see, e.g., Supreme Court Decisions 87Meu1761, Nov. 10, 1987; 2018Da22008, Jul. 19, 2018).

This is because the benefit of the protection of rights is not recognized in light of res judicata effect of a final and conclusive judgment to bring a lawsuit again in the same lawsuit without the ten-year lapse of the extinctive prescription period of the claim after the judgment in favor of the winning party becomes final and conclusive, but because there is a need to extinctive prescription in the event the period is imminent, the benefit of the lawsuit to bring a subsequent suit

Meanwhile, given that the judgment in a subsequent suit for the interruption of extinctive prescription is not contrary to the final and conclusive judgment rendered in favor of the previous suit, the court in the subsequent suit cannot re-examine whether all the requirements to assert the established right are satisfied (see, e.g., Supreme Court en banc Decision 2018Da22008, etc.). As such, res judicata of the judgment in the subsequent suit takes place as at the time of the closing of argument in the subsequent suit, the grounds for extinguishment of the claim, such as repayment, offset, and exemption, arising after the closing of argument in the prior suit, are subject to the subsequent suit. Therefore, the Defendant, who is the debtor, may lodge a defense in the subsequent suit for the said reasons, and the court should dismiss the Plaintiff’s claim

In light of the purport of deeming that the benefit of protecting the rights of subsequent litigation for the interruption of extinctive prescription is different depending on whether the period of extinctive prescription period of a claim established by a judgment is imminent, and the effect of the completion of extinctive prescription of a claim, etc., a court which examines a subsequent suit for the interruption of extinctive prescription may not recognize the benefit of re-instigation of a lawsuit for the interruption of extinctive prescription, barring any special circumstance, such as where the cause for interruption of extinctive prescription is interrupted because the extinctive prescription has been interrupted after the judgment in a prior suit became final and conclusive, and the cause for interruption of extinctive prescription cannot be recognized as not being 10 years after the judgment in a prior suit became final and conclusive, the subsequent suit shall not be dismissed merely because there is no benefit of lawsuit, and the judgment on

2. Review of the reasoning of the lower judgment and the record reveals the following facts.

A. On December 22, 2005, the Plaintiff filed a lawsuit against the Defendant seeking payment of damages of KRW 70 million as the Daejeon District Court’s 2005dan10513, and on March 10, 2006, the said court rendered a decision in lieu of the conciliation that the Defendant would pay the Plaintiff KRW 25 million to the Plaintiff until March 10, 2006, and the said decision was finalized on January 24, 2006, in addition to the damages for delay (hereinafter “instant compulsory conciliation decision”).

B. In addition, the Plaintiff filed a lawsuit against the Defendant for a claim for the return of the purchase price upon the rescission of the sales contract at Daejeon District Court Branch Decision 2006Kadan930, and the above court rendered a judgment on September 21, 2006 that the Defendant would pay the Plaintiff KRW 25 million and delay damages (hereinafter “the judgment of the previous suit”). The above judgment became final and conclusive on October 11, 2006.

C. On April 28, 2017, the Plaintiff filed the instant lawsuit seeking payment of the amount of money based on the claim established by the instant compulsory adjustment decision and the instant judgment (hereinafter “instant judgment, etc.”). The Plaintiff stated that the instant lawsuit was again filed for the interruption of extinctive prescription by filing an application for modification of the purport and cause of the claim filed with the first instance court on October 19, 2017, which was submitted to the first instance court.

3. According to the reasoning of the lower judgment, the lower court upheld the first instance judgment which dismissed ex officio the lawsuit on the ground that there is no benefit to seek interruption of prescription on the ground that the lawsuit in this case was a final and conclusive judgment in favor of the lower court, or that the same effect is the same right and legal relation as the previous suit for which a decision on compulsory adjustment became final and conclusive, and ten years have passed since it was possible to exercise its right

Examining the above facts in light of the legal principles as seen earlier, even if ten years have elapsed since the judgment, etc. in the prior suit of this case was finalized, it cannot be deemed unlawful as there is no interest in the lawsuit immediately. Therefore, the above determination by the court below is erroneous.

However, according to the records, the defendant asserted in the judgment of the court below that the extinctive prescription of the claim established by the judgment of the previous suit of this case was completed, and since the fact-finding of the court below that 10 years have passed since the judgment of the previous suit of this case became final and conclusive, it is clear that the plaintiff's claim based on the judgment of the previous suit of this case will be dismissed as a result of the expiration of the extinctive prescription. Thus, it is reasonable to maintain the judgment of the court below in the case of this case where only the plaintiff appealed, and dismiss

4. Therefore, without examining the grounds of appeal, the Plaintiff’s 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 Kim Seon-soo (Presiding Justice)