(영문) 대법원 2018.7.12.선고 2018다217820 판결

1. In a case where a creditor subrogation lawsuit is pending in the court on behalf of the same debtor and the same garnishee has been filed with the same garnishee on behalf of the same debtor, if the subject matter of the lawsuit is the same, the lawsuit which last is pending in the court shall not be exempted from dismissal because it is an unlawful lawsuit filed in violation of the prohibition of double lawsuit. In this case, the criteria for determining the previous lawsuit and the subsequent lawsuit shall follow the time when the lawsuit is pending, that is, when the complaint was served on the defendant (see, e.g., Supreme Court Decision 87Meu3155, Apr. 11, 1989).

In addition, the prohibition of double lawsuit is one of the requirements of lawsuit that naturally arise due to the continuation of lawsuit, and if a prior suit has already been filed regarding the same case, even if the prior suit is deemed unlawful due to the lack of the requirements of lawsuit, the subsequent suit violates the prohibition of double lawsuit, unless the pending lawsuit is extinguished by withdrawal, dismissal, etc. until the closing of argument in the subsequent suit (see, e.g., Supreme Court Decision 97Da45532, Feb. 27, 1998).

2. The following facts are known in accordance with the reasoning of the lower judgment and the record, or are obvious to this court:

A. On June 17, 2015, AD Co., Ltd. (hereinafter referred to as “AD”) filed a lawsuit against the Defendant on behalf of the Seoul Central District Court 2015 Gohap Co., Ltd. (hereinafter referred to as “C”) on behalf of the Defendant on the part of the Seoul Central District Court 538798 (hereinafter referred to as “C”), against each of the units of the instant reconstruction building, including the instant real estate, to perform the procedure for registration of cancellation of registration of ownership preservation (hereinafter referred to as “pre-appeal”), and a duplicate of the complaint was served on the Defendant on June 25, 2015.

B. On July 15, 2016, the first instance court of the previous lawsuit rendered a judgment dismissing the said lawsuit on the ground that the preserved claim against AD against AD was not recognized, and the said lawsuit was unlawful on the ground that AD failed to meet the eligibility as a party to the creditor subrogation lawsuit. Accordingly, AD’s appeal is pending in the appellate trial as Seoul High Court 2016Na2053488.

C. Meanwhile, on May 27, 2016, the Plaintiff (appointed; hereinafter referred to as “Plaintiff”) filed the instant lawsuit against the Defendant by subrogationing C on May 27, 2016 against the Defendant to comply with the procedure for registration of cancellation of registration of cancellation of ownership preservation, which was completed with respect to 11/154 shares of the instant real estate. The duplicate of the complaint was served on the Defendant on September 29, 2016.

D. On August 18, 2017, the first instance court of this case rendered a judgment accepting the Plaintiff’s claim, and appealed by the Defendant. On December 6, 2017, the lower court closed the pleadings and rendered a judgment dismissing the Defendant’s appeal.

3. Examining these facts in light of the legal principles as seen earlier, the instant lawsuit is unlawful as it constitutes a duplicate lawsuit, insofar as the pending lawsuit has not been extinguished by the date of closing argument in the lower court, on behalf of the same debtor, even though the prior suit by the creditor subrogation is pending in the court. Nevertheless, the lower court erred by misapprehending this, and thus, cannot be reversed. The allegation in the grounds of appeal pointing this out is with merit.

However, the court below shall point out the fact that the previous suit was terminated rather than immediately dismissing the suit on the ground that the suit in this case constitutes a double suit, and it would be a desirable measure in terms of the litigation economy, etc. according to the result.

4. Therefore, without further proceeding to decide on the remaining grounds of appeal, the lower judgment is reversed, and 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.