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Daegu District Court Decision 2012Gaso6869 Decided November 6, 2012

June 19, 2013

July 12, 2013

1. Revocation of a judgment of the first instance;

2. The instant lawsuit shall be dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

The defendant shall pay to the plaintiff 1,795,468 won with 20% interest per annum from the next day of the delivery of a copy of the complaint of this case to the day of full payment.

1. Determination as to the legitimacy of the instant lawsuit

The cause of the claim asserted by the plaintiff in this case was approved through the card terminal installed by the defendant while operating the automobile maintenance business. From September 2005 to December 2, 2006, part of the amount approved by the plaintiff on the card was revoked as the defendant did not claim the payment to the card company as the defendant did not request the payment of 7,477,00 won. Thus, the defendant should take measures against this amount and compensate for the remaining damages excluding 2,181,532 won that the plaintiff received from the card company and 3,500 won that the plaintiff received from the card company before this case.

However, on September 11, 2008, before the filing of the instant lawsuit, the Plaintiff filed a lawsuit claiming KRW 3,500,000, which is a part of the amount of the said damages with the Daegu District Court 2008Ga Office 270892, and filed a lawsuit on January 14, 2009, “the Defendant shall pay to the Plaintiff the amount of KRW 3,500,000 and interest calculated at the rate of KRW 20% per annum from October 10, 2008 to the date of full payment” with the Plaintiff, and the Defendant filed an appeal against the instant judgment, but the appeal was withdrawn on November 10, 209, and the said judgment became final and conclusive.

At the time of the previous lawsuit, the fact that the plaintiff did not state that the amount of KRW 3,500,000, which was the claim amount, was part of the damages suffered by the plaintiff, was not a dispute between the parties, or that the plaintiff was a partial claim, may be recognized by taking into account the descriptions of the evidence No. 2, evidence No. 1, and No. 2, evidence No. 2, and evidence No. 1 and No.

On the other hand, as long as the plaintiff filed a lawsuit demanding performance of part of the claim, and did not expressly state that the remainder will be reserved and only a part of the claim, the res judicata of the final and conclusive judgment extends to the remaining remainder claim after the claim is made (see, e.g., Supreme Court Decision 92Da33008, Jun. 25, 1993). In this case, as long as the plaintiff does not specify that the claim is a part of the claim at the time of the previous lawsuit, the lawsuit of this case claiming the remaining remainder shall be deemed unlawful because it conflicts with the res judicata effect of the final and conclusive judgment.

2. Conclusion

Therefore, the lawsuit of this case is unlawful and thus dismissed, and the judgment of the court of first instance is unfair with different conclusions, so the judgment of the court of first instance shall be revoked and the lawsuit of this case shall be dismissed as per Disposition.

The presiding judge, judges and motion pictures

Judges Kim Dong-han

Judges Hong-ju