강제집행의 종료와 전소 확정판결의 기판력 -대법원 2024. 1. 4. 선고 2022다291313 판결

Termination of Enforcement and the Res judicata of Confirmed Judgment of Previous Lawsuit -Supreme Court Decision 2022da291313, January 4, 2024- The case under study is as follows. Bank A, acting on behalf of landlord C, filed a claim for the delivery of the apartment in question against tenant B in a previous lawsuit. After receiving a confirmed judgment in favor, the delivery was completed. Subsequently, C filed a subsequent lawsuit against B, who occupied the apartment in question, seeking delivery of the apartment in question based on a claim for exclusion of interference based on ownership. The following points were examined regarding the subject judgment: ① Whether the lease agreement is terminated even without a reason for termination when the tenant loses possession of the leased property due to the execution of the leased property by confirmed judgment of the previous lawsuit ② Whether substantive rights can be considered altered when execution is achieved by a confirmed judgment in the previous lawsuit, ③ Whether the confirmed judgment in the previous lawsuit has the res judicata effect on the subsequent lawsuit. Regarding ①, the following views were presented. Even if B's ​​possession of the apartment in question is lost by terminating the execution of delivery for the apartment, the loss of possession cannot affect B's right to lease, and it is difficult to view it as a reason for termination of the lease agreement in question. Regarding ②, the following views were presented. It cannot be said that the substantive rights relationship changes due to the effect of the termination of execution. The essence of res judicata is best understood through the theory of procedural law. According to this theory, a lease contract which is the substantive legal relationship cannot be considered to have altered (or terminated) by previous confirmed judgment. Therefore, the ruling in the instant case that "the lease contract between the plaintiff and defendant was terminated at the time the confirmed judgment of the previous lawsuit and the lawful execution thereof were concluded" is not valid. And the Supreme Court decision 2006da64009, which the subject judgment is based on, ruled that when a transfer order is lawfully made and confirmed, the seized debt is transferred to the execution creditor within the scope of the execution debt in accordance with the provisions of the Civil Execution Act. Therefore, it is not reasonable to generalize the decision regarding the substantive legal effect of a transfer order as stipulated in the Civil Execution Act to the fact that the substantive legal rights relationship in the lawsuit changes when a confirmed judgment and execution based on it are terminated even in the absence of such provisions regarding such substantive legal effect. Regarding ③, the following opinion was presented. In the case at issue, the subject matter of the prior lawsuit was a claim for delivery under the lease agreement following the termination of the lease, while the subject matter of the subsequent lawsuit was a claim for delivery based on ownership. Therefore, according to the old subject matter of lawsuit theory which is case law, the subject matters of lawsuit are different, the prior lawsuit does not pre-exist the subsequent lawsuit, and the prior and subsequent lawsuits are not inconsistent. Therefore, the res judicata of the prior lawsuit does not apply to the subsequent lawsuit, and therefore the subsequent lawsuit does not conflict with the res judicata of the prior lawsuit. Ultimately, in this case, the subject matter of the prior lawsuit is a claim for delivery under the lease agreement due to the termination of the lease agreement, and the subject matter of the subsequent lawsuit is a claim for delivery based on ownership. Therefore, the res judicata effect of the prior lawsuit does not apply to the subsequent lawsuit, so it is reasonable to assume that the subsequent lawsuit is possible, and that defendant B can assert the validity of the lease agreement in this case in the subsequent lawsuit.