[1] In a case where there is a change in circumstances inconsistent with the judgment in the previous suit due to a new cause that occurred after the closing of argument in the previous suit, whether the res judicata effect of the final and conclusive judgment in the previous suit is interrupted (affirmative), and whether the “new cause that occurred after the closing of pleading” includes the following circumstances: (a) there is a new evidence of the existing facts, or there is a new legal evaluation or another judgment that contains such legal evaluation (negative

[2] In a case where Gap et al., agreed to newly construct apartment units on the land owned by Eul and Eul et al., and agreed to pay for construction price in kind to Eul et al., and filed a lawsuit seeking the delivery of building against Byung et al., who possessed the apartment units from Eul et al. after the registration of ownership preservation was completed by designating each of the owners of 1/5 shares in the apartment units as owners of Eul et al. (the first extradition lawsuit) but Byung entered into a sales contract with Eul et al. with Eul et al. with the right to dispose of the apartment units and entered into a sales contract with Eul et al., and the judgment against Byung became final and conclusive on the ground that Eul et al. had a legitimate right to occupy the apartment units after purchasing them, the case holding that the second extradition lawsuit against Byung et al. cannot be allowed since it violated the res judicata effect of the final and conclusive judgment in the first extradition lawsuit

[1] Res judicata of a final and conclusive judgment shall affect all means of attack and defense which the parties have asserted or could have asserted before the closing of argument in the previous suit. However, if there is a change in circumstances inconsistent with the judgment in the previous suit due to a new cause that occurred after the closing of argument, the effect of res judicata shall be interrupted. In addition, the new cause that occurred after the closing of argument refers to a new fact, and it does not include circumstances such as the existence of new evidence regarding the existing facts or a new legal assessment or other judgment

[2] Where Gap et al., agreed to newly construct apartment units on the land owned by Eul and Eul et al. as a substitute for payment of construction price, and Gap et al., agreed to provide for payment in substitutes for some apartment units, and filed a lawsuit claiming delivery of the building as a claim for removal of interference based on ownership against Byung et al. after the registration of ownership preservation was completed (hereinafter "the first extradition lawsuit"), but Byung concluded a sales contract with Eul et al. with Eul who has the authority to dispose of the apartment units and purchased the apartment units, and the judgment against Eul et al. became final and conclusive on the ground that there was legitimate authority to occupy the apartment units, and subsequent lawsuit seeking confirmation of invalidity of the sales contract against Byung was not concluded by a person with legitimate authority to act as proxy of Eul, and the judgment becomes final and conclusive, and Gap et al., again entered into the first extradition lawsuit against Byung as an act of preservation of the apartment units after the closing of argument and the first extradition lawsuit against Byung cannot be seen as a legitimate ground for nullification of the first extradition lawsuit, and both the first extradition lawsuit and the first lawsuit seeking for removal of ownership defense.

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

[1] Supreme Court Decision 91Da24847, 24854 delivered on October 27, 1992 (Gong1992, 3238)

Plaintiff (Appointed Party) (Law Firm Lee Hydd, Attorneys Park Chang-g Chang et al., Counsel for the plaintiff-appointed party-appellant)

Defendant 1 and two others (Law Firm Masung, Attorney Cha Jae-il, Counsel for the defendant-appellant)

Seoul Central District Court Decision 2015Na69135 decided April 29, 2016

The judgment below is reversed, and the case is remanded to the Seoul Central District Court.

Judgment ex officio is made.

1. The res judicata effect of a final and conclusive judgment extends to a judgment on the existence of legal relations asserted as a subject matter of a lawsuit, and thus, the same party’s filing of a subsequent suit against the same subject matter of a prior suit is not permissible as it conflicts with the res judicata effect of the final and conclusive judgment in the prior suit. Furthermore, res judicata effect of a final and conclusive judgment extends to all means of attack and defense which the parties have asserted or could have asserted before the closing of argument in the prior suit. However, in a case where there is a change in circumstances inconsistent with the judgment in the prior suit due to a ground newly created after the closing of argument in the prior suit, the effect of res judicata effect is interrupted (see Supreme Court Decision 91Da24847, 24854, Oct. 27, 1992, etc.). In this context, a new ground that occurred after the closing of argument is merely a new fact-finding, and there is a new evidence or another judgment that contains a new legal assessment or

2. The reasoning of the lower judgment and the record reveal the following facts.

1) On March 28, 2003, 203, 10 households of this case were newly constructed on the above land between the Plaintiff (designated parties, 2, 3, and Nonparty 1 and Nonparty 2 (hereinafter collectively referred to as “land owners”), and the Plaintiff (designated parties, hereinafter referred to as “Plaintiffs”) holding five parcels of land outside Jongno-gu Seoul, Jongno-gu, Seoul, and 2, 6, 3, and 16, and 13 households except 7 households designated by the land owners as designated by the owners of land agreed to pay in kind to the non-party company for the construction cost. The non-party company: (a) on November 2003, 200, the National Bank of Korea, a creditor of the non-party 2, attached 2 shares of each of the individual households of this case, and did not complete the construction but completed the construction; and (b) on November 16, 2006, registered the ownership of each of the instant apartment owners to the non-party company as the owner of each of this case.

2) Around 2007, the apartment building of this case was owned by the buyers of the apartment unit purchased from the non-party company or the claimant for the unpaid construction cost, and the owners of the land filed a lawsuit against the possessor of the apartment unit against the owner's claim for the removal of interference based on the ownership (hereinafter "the first extradition lawsuit"). In this case, the court rendered a judgment dismissing the claim against the defendant 1 on the ground that the defendant 1 purchased the apartment unit of this case by a sales contract concluded on November 12, 2004 (hereinafter "the sales contract of this case") between the non-party company with the authority to dispose of the apartment unit of this case and the non-party company with the authority to dispose of the apartment unit of this case. The judgment became final and conclusive on January 21, 2009 and announced February 18, 2009, and the part against the defendant 1 was final and conclusive as the withdrawal of the appeal.

3) After the final and conclusive judgment on the first extradition lawsuit, the non-party company filed a lawsuit seeking confirmation of the invalidity of the instant sales contract against Defendant 1 and Defendant 2 (the father of Defendant 1), Seoul Central District Court 201Gahap32445, and the above court rendered a judgment accepting the claim of the non-party company, and the above judgment became final and conclusive on May 16, 2014, as both appeals (Seoul High Court 2012Na45940) and appeals (Supreme Court 2014Da8820) by the aforementioned Defendants (Supreme Court 2014Da820) were dismissed. The purport of the judgment is that the instant sales contract concluded under the name of the non-party company was null and void since there is no evidence to prove that the instant sales contract was concluded by a person with legitimate authority to act for the non-party company.

4) Meanwhile, on May 29, 2014, Nonparty 2’s heir, among the landowners, completed the registration of ownership transfer as to the share of 4/25 out of the instant apartment Nos. 503 on December 2, 2014 due to inheritance due to the consultation and division as of May 29, 2014.

5) The Plaintiff and the designated parties filed the instant lawsuit seeking delivery on the ground that Defendant 1, Defendant 2, and Defendant 3, who are their parents, possess without title 503 apartment units of this case.

3. Examining the above facts in light of the legal principles as seen earlier, both the subject matter of the instant lawsuit and the subject matter of the first India lawsuit are the same as the claim for the delivery of a building seeking the exclusion of interference based on ownership. Moreover, whether Defendant 1 had legitimate authority to possess the instant apartment building 503 is merely the grounds that existed before the closing of argument in the first India lawsuit, and the final judgment of the lawsuit seeking confirmation of invalidity containing legal evaluation thereof was made after the closing of argument in the first India lawsuit, and it cannot be deemed a new ground that occurred after the closing of argument, on the ground that the final judgment of the first India lawsuit containing legal evaluation was made after the closing of argument. Accordingly, the instant lawsuit cannot be permitted because it conflicts with the res judicata effect of the final judgment of the first India lawsuit, and its res judicata effect extends to Nonparty 2, including the co-ownership of the instant apartment building 503.

Nevertheless, the lower court determined that the instant sales contract, which the Defendants asserted as the possession title of 503 apartment units, was invalidated by the judgment of nullification of the lawsuit, and that this was the cause that occurred after the closure of the arguments at the fact-finding court in the first India lawsuit, and thus, res judicata of the first India lawsuit does not affect the instant lawsuit. Therefore, the lower court should also examine whether Defendant 2 and Defendant 3, as the independent occupant of the foregoing 503 unit, were the parties to a sales contract regarding 503 unit units of the lower judgment, and as seen earlier, Defendant 1 was the parties to the first India lawsuit, and Defendant 2 and Defendant 3 did not become the parties to the claim for extradition. In light of the following, the lower court should have determined that there was no data to verify the record that Defendant 2 and Defendant 3 occupied the above 503 unit of the said unit of 503 unit of the parent of Defendant 1.

4. Therefore, without examining the grounds of appeal by the assent of all participating Justices, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition.

[Attachment] List of Appointeds: Omitted

Justices Kim Shin (Presiding Justice)