실권효의 판단방법과 범위

Abstract

This paper reviewed the basis, judgment method and scope of the loss of plead right effect, specific scope of new reasons that arose after the conclusion of the argument. It is reasonable to view the basis of the loss of plead right effect as the general force or binding force granted to the court's judgment in the previous lawsuit, and according to this, it is reasonable to view that all offensive and defensive methods, that is, facts and evidence materials that existed before the conclusion of arguments in the fact-finding trial but were not submitted by the parties are blocked by the loss of plead right effect regardless of whether there was good or bad faith, intent or negligence. In addition, considering that the loss of plead right effect is a part of res judicata as an issue regarding the temporal scope of res judicata, it is reasonable to view that the loss of plead right effect arises only when the subject matter of the lawsuits before and after the lawsuit is the same, or the subject matter of the lawsuit in the previous lawsuit is in a prior relationship or contradictory relationship with the subject matter of the lawsuit in the subsequent lawsuit. In order to determine whether the loss of plead right effect is applied in a specific case according to the doctrine of old substantive law, which is the position of the judicial precedent regarding the subject matter of the lawsuit, the following review method can be used. ① First, it is examined whether the claim in the subsequent lawsuit is the cause of the claim or an attack and defense method. If it is the cause of the claim which is different from previous lawsuit, the loss of plead right effect does not apply because the res judicata effect does not apply. This is an issue related to the objective scope of the res judicata effect. ② If the subject matter and cause of claim of the previous and subsequent lawsuits are the same and the claim in the subsequent lawsuit is an attack and defense method which is different from previous lawsuit, it is examined whether the cause occurred before or after the conclusion of the arguments in the fact-finding trial of the previous lawsuit. If it occurred before the conclusion of the arguments in the fact-finding trial of the previous lawsuit, it is blocked by the loss of plead right effect, and if it occurred after, it is not blocked by the loss of plead right effect. The order of judgment of ① and ② above can be changed, but the objective scope and temporal scope of the res judicata effect must be reviewed together. ③ The review process of ② above is applied equally not only when the subjects of the lawsuits in the previous and subsequent lawsuits are the same, but also when the subjects of the lawsuit in the previous lawsuit are in a relationship prior to the subjects of the lawsuit in the subsequent lawsuit or are in a relationship of contradiction with the subjects of the lawsuit in the subsequent lawsuit. Regarding the scope of new reasons that arose after the conclusion of arguments, the following views were presented with specific grounds. ① If the extinctive prescription runs before the conclusion of arguments in the previous lawsuit and the extinctive prescription is completed after the conclusion of arguments, and the claim for completion of the extinctive prescription is made in the subsequent lawsuit, if the lessee could have exercised the purchase request right of the building and the purchase request right of the building accessories in the previous lawsuit but did not exercise them and then exercises them in the subsequent lawsuit, the claim is not blocked by the loss of plead right effect. ② If a limited acceptance was made before the conclusion of arguments in the previous lawsuit but was not asserted in the previous lawsuit and then asserted in a subsequent lawsuit, if a bill payment claim lawsuit is filed without supplementing the blank bill before the conclusion of arguments in the previous lawsuit and the blank bill is supplemented after the judgment for loss is finalized, the claim is blocked by the loss of plead right effect. ③ If a formative right such as a right of cancellation, rescission, or set-off that was already established or met the requirements for exercise before the conclusion of arguments in the previous lawsuit was not exercised in the previous lawsuit and then exercised after the judgment in the previous lawsuit was finalized, asserting the fact of exercise and the legal effect thereof is not blocked by the loss of plead right effect. Even if the requirements for the exercise of formative rights such as a right of cancellation, rescission, or set-off were already met before the conclusion of arguments in the previous lawsuit, the exercise occurred after the conclusion of arguments in the previous lawsuit, so asserting the fact of exercise of the formative right and the fact of occurrence of the legal effect thereof are reasons after the conclusion of arguments in the previous lawsuit.