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Relationship of Form of Text of a Judicial Decision and Objective Extent of Res Judicata

  • DONG-A LAW REVIEW
  • 2011, (53), pp.341-375
  • Publisher : The Institute for Legal Studies Dong-A University
  • Research Area : Social Science > Law

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ABSTRACT

For the purpose of determining the objective extent of res judicata, the stipulation in the Article 1, Clause 216 of the Civil Procedure Act, “A final and conclusive judgement shall have the effect of res judicata in so far as the matters contained in the text thereof are concerned”, must be fully considered prior to the subject matter of a lawsuit theory. In this sense, it is only natural to regard that, in the case when all the facts have been described in the text of a judicial decision all the facts have the res judicata effect. In the case of all the facts having been described in the text of a judicial decision, the position of an opinion that claims that all the facts cannot be a standard for determining the extent of res judicata cannot be said as being reasonable. Furthermore, the position of the judicial precedent that claims that final judgement does not have res judicata effect on the in/existence of contract, which becomes the origin of a certain right, or belonging of ownership right cannot be said as being reasonable. On the contrary, the position of an opinion that claims that the extent of res judicata should be determined upon considering all the facts in every case, whether or not all the facts have been described in the text of a judicial decision, is also unreasonable because of its possibility to excessively draw in the determination of fact essential to the judgment when interpreting the text of a judicial decision. In short, the following cases should be seen as facts of cause of the final judgement having res judicata effect regardless of whichever theory of lawsuit object is applied: the case in which all the facts are described in the text of a judicial decision – judgement for not only ownership transfer registration but also for ordering expression on other property right; judgement on the principal registration based on provisional registration; judgement on right to lease on a deposit basis act of establishment registration, mortgage act of establishment registration and superficies act of establishment registration; judgement of ordering expression on transfer of credit; judgement on registration for cancellation from subsequent cause of effect; declaratory judgement on credit; fraudulent cancellation judgement. In addition, the reason for judgement or the content on cause of request should be considered at the minimum level needed to determine only in the case when the extent of res judicata cannot be determined because of the transparency and conciseness of the text of a decision. Such would be an interpretation faithful to the stipulation of the positive law for disallowing res judicata for the determination of fact essential to the judgment except for offset.

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