(영문) 서울동부지방법원 2015.04.10 2014가합101109

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(영문) 서울동부지방법원 2015.04.10 2014가합101109

사행행위취소 등

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1. The instant lawsuit shall be dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

Reasons

1. We examine ex officio the legitimacy of the instant lawsuit.

A. Mediation is established by stating the agreed matters between the parties in the protocol. Since the protocol has the same effect as a final and conclusive judgment, such as a protocol of judicial conciliation, res judicata takes effect between the parties (see Supreme Court Decision 2009Da104960, 104977, Mar. 27, 2014).

In full view of the overall purport of the pleadings in the statement No. 4 of this case, the Plaintiff filed a lawsuit against the Defendant on June 12, 2012 with the Seoul Central District Court (2012Gahap49105) for a loan identical to the cause of the instant claim. On March 20, 2013, the Plaintiff and the Defendant in the above court on March 20, 2013, “the Defendant shall pay the Plaintiff damages for delay calculated at the rate of 165,60,000 won with respect to three parcels of land outside 727m27m2 in Gwangju City by December 31, 2013, the maximum debt amount of which is KRW 165,60,000, the debtor, the Defendant, and the Defendant as the Plaintiff. If the Defendant was unable to acquire each of the above real estate, the Defendant shall not be paid damages for delay calculated at the rate of 138,000,000 won until December 31, 2014.”

According to the above mediation, the plaintiff is entitled to 138,00,000 won and damages for delay when the procedure for registering the creation of a mortgage was implemented by the defendant (i.e., the maximum debt amount of 165,600,000 won can be acquired and disposed of and commercialized). If the plaintiff is unable to perform the procedure for registering the establishment of a mortgage, the claim of 138,000,000 won and damages for delay are determined as stated in the mediation protocol.

C. Therefore, the instant lawsuit is not in conflict with res judicata of the conciliation protocol and thus there is no benefit to protect rights.

2. As such, the instant lawsuit is unlawful and thus dismissed. It is so decided as per Disposition by the assent of all participating Justices.

참조판례

-대법원 2014. 3. 27. 선고 2009다104960,104977 판결

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