Theory of Litigation/Scope of Jurisdiction

1. Theory of Pretext Law (Theory of Pretext Law): The theory of pretext law: The
theory of pretext law considers the claim of a right or legal relationship under
substantive law as the subject of the lawsuit, and the case law identifies the
identity by the cause of the claim for each substantive right as the theory of
pretext law
Example) Claim for balance payment based on a transfer contract - Claim for
return of deposit and down payment due to termination of a transfer contract
Commercial Act Article 148 claim for damages - Civil Act Article 750 claim for
damages under a tort
Contractual claim for the destruction of the recipient - Civil Act Article 750 claim
for damages
Bills and checks - causal act claim
Return claim ownership - possession
2. Registration-related (case law)
① Previous registration: Sale or payment in kind in the previous lawsuit -
Prescription for acquisition of possession in the subsequent lawsuit (separate
lawsuit o)
② Cancellation registration: Even if the cause of cancellation is different, the
difference is only an attack and defense method (separate lawsuit x)
③ Cancellation of fraudulent acts: The assessment of the causal act and the claim
of donation or payment are merely differences in the attack and defense methods
(separate x)
3. Types of lawsuits (case law)
Suspension lawsuit: If the facts are different, it is a separate lawsuit
Confirmation lawsuit: Sale that is the cause of acquisition of ownership, acquisitive
prescription attack and defense method separate lawsuit x
Formation lawsuit: Multiple causes of formation, separate lawsuit o
4. Res judicata
a. Time scope
(1) Standard time: At the time of conclusion of factual argument, at the time of
pronouncement of judgment
(2) Reasons existing before the standard time, actual effect (blocking effect)
Formation right _blocking o, set-off right x
Suspension of performance-x, confirmation-o, formation-x
Transfer registration _ x, cancellation registration -o, cancellation of fraudulent
act -o
(3) Reasons occurring after the standard time
Change of circumstances: Filing of a complaint (payment, etc.) -o, complaint of
objection to claim -o
Illegal execution of judgment x, limited approval - complaint of objection to claim
o, waiver of inheritance -x
B. Objective scope
1. Judgment of judgment order
(1) Scope of the same lawsuit
① If the purpose of the claim is different - x (Building name: Cancellation of
previous registration)
② If the substantive rights of the cause of the claim are different, the same facts
- x, (Nonperformance of debt: Tort)
③ If the facts forming the cause of the claim are different - x (Bill of exchange:
Purchase price claim)
2. Partial claim
3. Judgment among the reasons for the judgment
(1) Facts: x , the purpose of the lawsuit is to confirm rights, confirmation of facts
x, while making a judgment to cancel the registration, the premise is the
recognition of the fact of purchase by an unauthorized agent, and the reason for
the judgment for damages is intent, negligence, and causality
(2) Preceding legal relationship: x , the judgment on the prior legal relationship
that is the premise for determining the existence of the lawsuit does not have the
binding force, even if there is a judgment on the existence or non-existence of the
principal claim in the reason for the judgment on the interest claim, the binding
force is limited to the existence or non-existence of the interest claim, which is
the subject of the lawsuit. The binding force of a final judgment on a claim for
cancellation of a transfer of ownership is a conclusion, and only affects the
existence of the claim for cancellation of the registration, which is the subject of
the lawsuit, and does not affect the existence or nonexistence of the ownership,
which is the cause of cancellation stated in the reasons for the judgment.
Therefore, even if A loses the lawsuit for cancellation of the transfer of ownership
against B on the grounds that the plaintiff A does not have ownership, the plaintiff
A can file a subsequent lawsuit for confirmation of ownership against B again.
This is because the purpose of the lawsuit is not the confirmation of the prior
legal relationship judged in the reasons, but the confirmation of the existence or
nonexistence of the legal relationship, which is the subject of the lawsuit.
(3) Defense: x, exception to the defense of setoff, if the claim for demolition of a
building and return of land is dismissed on the grounds of the existence of the
defendant's statutory surface right, the judgment on that surface right does not
have binding force, and in the case of a judgment ordering performance of
repayment, the existence or nonexistence of the counterclaim and the amount
submitted as a defense of concurrent performance do not have binding force.
(4) Legal judgment: x, the judgment in the reasons for the judgment does not have
the binding force to the part of the judgment that the distribution of agricultural
land is invalid. However, it has the binding force that binds the lower court of the
remand judgment (Article 436, Paragraph 2, Article 8 of the Law)
Subjective scope of the binding force
: A final judgment is effective against the parties, the successor after the
conclusion of the argument, or the person in possession of the object of the claim
(Article 218, Paragraph 1)
(1) Between the parties (principle)
(2) Exception (third party to be considered together with the parties)
① A person who succeeded to the object of the lawsuit (the subject of the lawsuit,
the rights and obligations that are the purpose of the lawsuit)
A successor is a person who succeeded to the “substantive rights and obligations
that are the subject of the lawsuit” (substantive dependence theory)
Types of succession include plaintiff and defendant, winner and loser, general
succession and specific succession, arbitrary disposition (sale and bequest) and
force All provisions of the disposition (full order, auction) and law (Article 399 of
the Civil Code, etc.) apply
Applicable > Assignee of ownership for which a judgment of confirmation of
ownership has been made (??), Assignee of a claim for which a judgment of
performance has been made, Exemption of debtor, Business transferee of a sports
facility under the Sports Facilities Act (Article 27 of the same Act)
Not applicable > Business transferee of mutual continuous use Not applicable
(78da2330), In case of taking over or guaranteeing a debt after the conclusion of
arguments (Concurrent debt taking over or guaranteeing is not applicable)
② Person who succeeded to the subject of the claim (subject of dispute, party
qualification, status as party to the dispute)
Succession of the rights relationship, which is the subject of the lawsuit, includes
not only the transfer of the management relationship, which is the subject of the
lawsuit, but also the transfer of rights under substantive law that is the cause of
the transfer of party qualification. In other words, even if the rights and
obligations themselves, which are the object of the lawsuit, have not been
succeeded, a person who has succeeded to the position to dispute the object of
the lawsuit, that is, the qualification of a party, can also be a successor. This is in
line with the theory that the cause of succession in Paragraph 1 of this Article is
not limited to the succession of debts such as contracts and legacies, and includes
even the succession of real rights to the obligations, such as the succession of
possession of the object from the other party of a claim for return based on
ownership or a claim for exclusion of interference (a person who acquires
possession of the building after a judgment for title to the building has been
issued) or the transfer of the object (a person who purchases the building or
completes the transfer registration after a judgment for demolition based on
ownership has been issued). However, the case law considers the substantive
nature of the claim as a claim of substantive rights in accordance with the old
theory that the claim is a claim of substantive law when determining whether or
not the claimant is a successor. When the claim in the lawsuit is a property claim
with a general effect, the successor to the defendant's position becomes the
successor under Article 218, Paragraph 1. However, when the claim is a claim of
debt with only a personal effect, the successor is not the successor. Therefore, a
person who succeeds to the possession of a building after the conclusion of the
argument in a lawsuit for title to a building based on a claim of debt is not a
successor.
Furthermore, a person who filed a lawsuit for title to a building based on
ownership rights after the final dismissal of the lawsuit for title to a building based
on ownership rights and the subsequent acquisition of ownership rights of the
building is not a successor after the conclusion of the argument in the previous
lawsuit. (98다6855, the res judicata effect of the previous lawsuit extends to the
building title claim, not to the ownership of the building, and the subsequent
lawsuit is not a succession of the building title claim of the previous lawsuit, but a
building title claim based on the building ownership acquired from the previous
owner, so the res judicata effect does not extend. 84다카148, the same is true in
the case of a loss in a land delivery lawsuit)... Confusion of the objective scope
and subjective scope of the res judicata effect
_③ In the case where the person who succeeded (acquired) the object after the
conclusion of the argument has an inherent interest or method of defense (good
faith acquisition, prescription for acquisition, fulfillment of requirements for the
occurrence of effect such as registration, etc.) to oppose under substantive law (in
the case where the losing defendant's registration/possession successor has an
inherent method of defense to oppose under substantive law to the winning
plaintiff), the case law states that the successor is not considered a successor
according to the substantive theory, and the case of 80다2217 is "the conclusion of
the argument on the final judgment ordering the transfer of ownership registration
A third party who later purchased the subject matter of the claim and registered it
is not a successor after the conclusion of the argument, and the effect of change
in ownership cannot be created solely by the final judgment itself.” (Judgment does
not serve as a basis for the creation of rights under substantive law.)
④ Owner of the subject matter of the claim
* When the methods of attack and defense are different
The old theory states that whenever the cause of the claim is different, the subject
matter of the lawsuit is different and does not conflict with the res judicata, but
when the methods of attack and defense are different (when the rights are the
same, but only the requirements for the creation of the rights are different), it is
considered to conflict with the res judicata. Case law states that in a cancellation
registration claim case, the distinction between the cause of claim and the method
of attack is important. Case law states that in a cancellation registration claim
case, even if the cause of invalidity of registration is different between the
previous and subsequent lawsuits, this is merely a difference in the method of
attack and defense that supports the invalidity of the cause of registration, and
thus the binding force of the previous lawsuit extends to the subsequent lawsuit.
In a claim for the return of unjust enrichment, asserting various reasons
(cancellation, invalidity, non-establishment, termination of the contract, etc.)
without legal cause is nothing more than an attack and defense method, so if one
of the reasons is asserted and lost, the claim based on the other reason will be in
conflict with the binding force. * The fact that it is an attack and defense method
has a blocking effect, if the facts that constitute the cause of the claim are
different, the blocking effect is not (excluding the confirmation claim)
1. Application for the main case = the purpose of the claim
2. Attack and defense method: Litigation materials submitted by the party that
justifies or defends the main application
Material for determining the existence of the lawsuit, unlike the lawsuit (claim)
itself, matters that affect the continuation of the lawsuit or the binding force
(Distinctive concept)
1. Litigation subject = claim in the lawsuit = subject of judgment
2. Object of the lawsuit: the object of the claim (Article 218, Paragraph 2) or the
subject of the dispute (subject of the dispute)
3. The factual relationship itself that led to the lawsuit
(Cause of claim)
Broad sense: the factual relationship corresponding to the cause of occurrence of
the plaintiff's asserted rights relationship ↔ the facts of the defendant's defense
Narrow sense: the supplementary purpose of the claim purpose for specifying the
claim, the facts necessary to specify the claim (lawsuit)
In a loan claim, the payment date is unnecessary to specify the lawsuit subject,
which is a fact that justifies the claim or It is not a fact necessary for the
specificity of the lawsuit, and in order to distinguish it from other claims, the
rental date, parties, and rental amount are sufficient, so it is unnecessary.
(Purpose of claim) = Order of judgment = Standard for determining the identity of
the lawsuit = What kind of judgment is requested