미국법상 기판력 인정의 예외제도 및 지급명령의 효력에 대한 함의

If a creditor thinks that its claim is not likely to be disputed by the debtor, and wants to avoid the cost and expense of instituting an ordinary lawsuit, he/she may elect to use the “civil warning procedure” to collect the claim. However, a payment order in the civil warning procedure has only effect to execute the order in civil enforcement procedure. It means that the payment order does not have any res judicata effect, so that it can not bar the creditor or debtor from bringing the same claim in a subsequent action. In this regard, exceptions to the application of res judicata in America need to be explored. In order for a judgment to have res judicata effect in America, the court must find that it satisfies three requirements: (1) a final judgment on the merits rendered by a court of competent jurisdiction, (2) identity of parties or their privies, and (3) identity of cause of action. Where these elements are present, res judicata may extend not only to every matter that was determined in the prior lawsuit but to every matter that might have been determined. However, the first requirement is closely scrutinized for the purpose of comparing the effect of a payment order in Korea with res judicata effect of a judgment in USA. In order for a judgment to meet the first requirement mentioned above, the judgment must be valid, final, and on the merits. However, in some situations, additional policies would be damaged were the normal rules of res judicata to apply. This Article will focus on the exceptions to the application of res judicata and show their implications to the effect of the payment order in Korea.