면책 주장과 기판력 및 청구이의의 소

대법원 2022. 7. 28. 선고 2017다286492 판결에 대한 평석

Once a judgment has been finalized on a cause of action, parties are precluded from raising pleadings in support of, or defense to avoid the cause of action, which have existed prior to the final judgment but have not been submitted during the litigation. In the same vein, debtor cannot bring up pre-existing defense to object the execution based on the final judgment(Civil Execution Code Article 44②). During the lawsuit brought by the creditor seeking for monetary payment of his/her claim, if the debtor has not raised the fact that he/she has already been discharged, could the debtor later file an objection suit against the execution claiming that he/she has been discharged? The Supreme Court allowed this in 2017Da286492 case. In order to offer strong protection to the debtor, the Supreme Court analogized discharge to qualified acceptance of inheritance, and took the same approach. Namely, the scope of liability is irrelevant to the cause of action, and unless it is raised by the parties during the litigation, it does not become a matter to be decided upon, and therefore bringing up the issue of discharge, which releases the debtor from liability, is not precluded by res judicata effect of the prior judgment. However, the Supreme Court case law regarding qualified acceptance of inheritance is inconsistent and does not conform with the jurisprudence in procedural rules. Such conclusion was inevitable in the case of qualified acceptance of inheritance, as it was necessary to protect the heir who had to inherit the decedent’s debt which he/she was unaware of and had no reasons attributable to. On the other hand, the rationale for the debtor is less compelling, since it was his/her debt which he/she was supposed to be liable with his/her entire asset, yet has been discharged due to special consideration. Also, the substantive and procedural treatment regarding discharge is quite different from that of the qualified acceptance of inheritance. Moreover, 2017Da286492 judgment forces the creditor to relitigate on the same issue just because the debtor did not submit discharge defense during the prior lawsuit. In order to maintain procedural fairness and legal certainty, in principle the debtor should not be allowed to bring up pre-existing discharge defense in order to file an objection suit against execution because it is precluded by the res judicata of the prior judgment. As for the exceptional cases in which the debtor needs to be protected, good faith principle could be applied and the special circumstances of the debtor should be considered as a factor.