변론종결 후 승계인에 대한 신소 제기와 기판력 -대상판결 : 대법원 2022. 3. 17. 선고 2021다210720 판결-

With regard to the successor after the conclusion of the argument in which the subjective scope of the res judicata is expanded, the court does not clearly distinguish between the scope of the res judicata and the effect of the res judicata. Therefore, when the res judicata acts on a third party who has succeeded the legal position that is the basis of the litigation matter, then the third party is construed as the successor after the conclusion of the argument. When determining whether to extend res judicata, the nature of the lawsuit or whether a third party has inherent rights or unique legal status is considered due to such reasons. However, if a person succeeds the legal position that is the basis of the litigation matter after the conclusion of the argument, he or she should be regarded as the successor after the conclusion of the argument, which expands the res judicata. The nature of the previous lawsuit or whether the successor has his or her own legal position should not be taken into consideration. It is a matter to be determined separately whether the res judicata of a final judgment on a previous lawsuit applies to a successor to whom res judicata is exercised. Situations in which res judicata was exercised against a successor include cases where the litigated matter of the later lawsuit and the litigated matter of the previous suit's final judgment are the same, cases where the litigated matter of the previous lawsuit becomes a prerequisite legal relationship of the later lawsuit, and cases where the litigated matter of the previous and subsequent lawsuits contradict each other. In these cases, the parties are prevented from making contradictory claims within the scope of the previous lawsuit where res judicata arises, and the subsequent court is bounded by the judgment of the previous court. If the winning party files the same lawsuit again, there is no realistic need to seek a new ruling to protect the rights. Thus there is no Interest of rights protection. Therefore, the later court must dismiss the case on the grounds that there is no interest in the case. However, it was exceptional in this case, and the court recognized the interest in the case. There have been cases in the past when court exceptionally recognized the benefit of the lawsuit, but it was when the plaintiff's rights were unable to be protected unless the same lawsuit was repeated. It was when there was a realistic need to seek a new ruling to protect the plaintiff's rights. However in this case, compulsory execution was possible due to a final judgment in the previous lawsuit, so it cannot be seen as a case in which the benefit of the lawsuit can be recognized as an exception, as done in previous precedents. This case recognizes the benefit of the lawsuit on the grounds of convenience for the parties, speedy dispute resolution, and litigation economy, but these reasons are not only insufficient for clear judgment, but also does not respond to the request for securing the effectiveness of the dispute resolution function of the trial and the purpose of the res judicata system that binds the subsequent court and the purpose of recognizing the interests of the lawsuit only in cases where there is a realistic need to resolve the dispute through judgment. It is difficult to support the court’s decision in this case as the judgment in fact acknowledged the exception too easily solely for the sake of procedural convenience and economy. In this case, it is reasonable to decide that there is no interest in the lawsuit because there is no interest of rights protection.