Whether the fact of qualified acceptance constitutes a legitimate ground for objection (affirmative)

In a lawsuit brought by an obligee against an inheritor who inherited a pecuniary obligation of an inheritee seeking the performance of the inherited obligation, the scope of liability does not appear as a subject matter of practical adjudication unless the obligor asserts the fact of qualified acceptance, and thus, the scope of liability does not reach res judicata with respect thereto. Therefore, res judicata with respect to such matter does not extend to the effect of res judicata. Therefore, even if the obligor did not assert the fact by the time of closing argument in the lawsuit brought by the obligee, and thus no reservation as to the scope of liability is made and final and conclusive, the obligor may thereafter file

Article 1028 of the Civil Act; Article 218 of the Civil Procedure Act; Article 44 of the Civil Execution Act

Plaintiff 1 and two others (Attorney Hong Ho-hun, Counsel for the plaintiff-appellant)

Korea Technology Credit Guarantee Fund (Law Firm Jeong, Attorneys Im Jae-chul et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2005Na77468 Delivered on March 21, 2006

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

The grounds of appeal are examined.

The limitation of liability by qualified acceptance does not relate to the existence and scope of an inherited obligation, but is merely limited to the scope of inherited property. In particular, if an obligor does not assert the fact of qualified acceptance in a lawsuit filed by an obligee against an inheritor who inherited an inheritee’s monetary obligation, then the scope of liability does not appear as a subject of adjudication, and thus, the scope of liability does not affect the conclusion of the text and the reasoning thereof. Therefore, even if an obligor receives a qualified acceptance and a judgment was rendered without any reservation as to the scope of liability by the wind that does not assert the fact until the closing of argument in the lawsuit brought by the obligee, it is reasonable to deem that an obligor is allowed to file a lawsuit of demurrer against a claim on the ground of the above qualified acceptance.

In full view of the adopted evidence, the court below affirmed the judgment of the court of first instance which rejected compulsory execution exceeding the above limit of the plaintiffs' inherited property due to the above qualified acceptance, on the ground that the defendant's execution based on the judgment of the defendant's claim for the above qualified acceptance is limited by the above qualified acceptance, and it is proper in accordance with the above legal principles, and there is no error in the misapprehension of legal principles as to res judicata effect and objection claim as asserted in the grounds of appeal.

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.

Justices Kim Hwang-sik (Presiding Justice)