[1] In a case where, after a final and conclusive judgment ordering the payment of periodical payments up to the date of maturity of the future, a special circumstance occurs that undermines equity between the parties, as the circumstances forming the basis for calculating the amount clearly changed after the closure of the fact-finding proceedings in the lawsuit, whether res judicata effect of the previous judgment affects the difference (negative)

[2] Where a lawsuit seeking the payment of wages equivalent to the average wage as at the time of dismissal is filed and the judgment in full winning the case becomes final and conclusive and a further claim is made for the payment of wages equivalent to the regular wage and the wage increase during the period of dismissal, the case holding that it cannot be deemed that there was a circumstance that seriously undermines the equity between the parties after the closure of fact-finding proceedings in the previous case

[1] A final and conclusive judgment has res judicata effect as to the contents of the judgment including the text, and even if a claim is based on the time of the closing of argument, if a claim is required in advance for the future, a lawsuit for performance may be brought. Thus, inasmuch as a performance order is ordered in the text of the performance judgment to perform the duty of payment within the period following the closing of argument, the res judicata effect of the final and conclusive judgment shall affect the existence of the right to claim up to the period included in the text of the judgment. However, in a case where a final and conclusive judgment ordering the payment of fixed-term funds for the part of the future due to a clearly changed circumstance that serves as the basis for calculating the amount after the closing of argument at the fact-finding court of the lawsuit, and where special circumstances arise which seriously undermine equity between the parties, the res

[2] Where a lawsuit seeking the payment of wages equivalent to the average wage as at the time of dismissal is filed and the judgment in full winning the case becomes final and conclusive and a further claim is made for the payment of wages equivalent to the regular wage and the wage increase during the period of dismissal, the case holding that there is no reason to undermine the equity among the parties after the closure of fact-finding proceedings in the previous lawsuit

[1] Articles 202(1) and 229 of the Civil Procedure Act / [2] Articles 202(1) and 229 of the Civil Procedure Act, Article 27 of the former Labor Standards Act (amended by Act No. 5309 of March 13, 1997) (Article 30 of the current Act)

[1] Supreme Court en banc Decision 92Da46226 delivered on December 21, 1993 (Gong1994Sang, 484)

Plaintiff (Law Firm Busan General Law Office, Attorneys Jeong Jae-sung et al., Counsel for the plaintiff-appellant)

Defendant of the receiver of the liquidation Korea Co., Ltd.

Busan High Court Decision 97Na2191 delivered on November 20, 1997

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

The grounds of appeal are examined.

A final and conclusive judgment has res judicata effect as to the contents of the judgment including the text (Article 202(1) of the Civil Procedure Act). In a case where a claim is required to be filed in advance even if a claim that becomes due on the basis of the time of closing of argument is based on the standard, a lawsuit for future performance may be brought (Article 229 of the Civil Procedure Act). As long as a judgment ordering performance of the duty of performance within the period following the closing of argument is based on the text of a judgment for performance, res judicata effect on the existence of the right to claim until the period included in the text of the judgment. However, in a case where a final and conclusive judgment ordering a fixed payment of the funds for the future due date of the final and conclusive judgment becomes final and conclusive, it shall be deemed that res judicata effect on the existence of the right to claim until the period included in the text of the judgment for performance does not extend to the difference between the parties as the special circumstance clearly changed after the closing of argument in the fact-finding court (see Supreme Court Decision 92Da46226

According to the facts established by the court below and the records, the plaintiff was subject to disciplinary action against the non-party Korea Korea Maraco Co., Ltd. on June 25, 1990, and filed a lawsuit against the above company for the payment of an amount equivalent to the monthly average wage as at the time of dismissal from June 26, 1990 to the time of reinstatement. The appellate court of the above lawsuit concluded the pleading on September 17, 1993, and ordered the whole winning judgment (the Busan High Court Decisions 92Na2516, Oct. 29, 199; hereinafter the previous final judgment) on Oct. 29 of the same year. The above judgment became final and conclusive on Dec. 13, 194; the above company, based on the previous final judgment of the court below, asserted that the plaintiff was reinstated on Feb. 3, 1995 and that the above amount was actually 30,352,600 won or more for the period of dismissal from the previous final judgment of 90 billion won to the date of dismissal.

Therefore, the plaintiff's primary claim of this case is ultimately contrary to the res judicata of the final and conclusive judgment in the previous suit.

The judgment of the court below to the same purport is just, and there is no error of law as to the scope of res judicata as otherwise alleged in the ground of appeal.

Therefore, the appeal is dismissed, and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Seo Sung-sung (Presiding Justice)