Open Decision Ledger · Civil obligations & remedies
New damages after the close of argument in an earlier damages action
Supreme Court, Dec. 27, 2019, 2019Da260395 (judgment)
No holding summary · checked against points at issue. The official text publishes no summary of the holding for this decision. The quotation and factors in this record are copied verbatim from the points at issue; the evidence for each axis is taken from the points at issue, the order and the reasons.
Case name: 손해배상(기)
Official text on the National Law Information Center
Question
When a court has ordered compensation for positive damage in an earlier tort action, does a further positive damage that arises after the close of argument in that action fall within the res judicata effect of the earlier judgment?
Holding
It does not, provided there are special circumstances such as that the loss could not be foreseen when the earlier action closed its argument and that the claimant cannot be said to have abandoned that part of the claim. In this case, the osteoarthritis and related symptoms were sequels of the accident and the scar contracture that were very likely not reflected in the medical opinion or the earlier judgment, so they were newly arising symptoms and the plaintiffs could not have foreseen the loss at the close of argument. The claim for damages caused by those symptoms was therefore not barred by the earlier judgment.
Points at issue, verbatim
적극적 손해의 배상을 명한 전소송의 변론종결 후에 발생한 새로운 적극적 손해가 전소송의 기판력에 저촉되지 않는 경우
Unofficial English translation
Where new affirmative loss arising after the close of oral argument in a previous lawsuit awarding damages for affirmative loss is not barred by the res judicata of the previous lawsuit
Disposition
Reversed and remanded Stated in the decision
원심판결을 파기하고, 사건을 대구고등법원에 환송한다.
Unofficial English translation
The judgment of the court below is reversed, and the case is remanded to the Daegu High Court.
Form of the test
Elements stated Stated in the decision
불법행위로 인한 적극적 손해의 배상을 명한 전소송의 변론종결 후에 새로운 적극적 손해가 발생한 경우에 그 소송의 변론종결 당시 그 손해의 발생을 예견할 수 없었고 또 그 부분 청구를 포기하였다고 볼 수 없는 등 특별한 사정이 있다면
Unofficial English translation
Where, after the close of oral argument in a previous lawsuit awarding damages for affirmative loss arising from a tort (unlawful act), new affirmative loss arises, and there are special circumstances such that the occurrence of that loss could not have been foreseen at the time of the close of oral argument of that lawsuit and the abandonment of the claim for that portion cannot be regarded as having taken place,
Factors
- 선행소송의 변론종결 후에 새로 발생한 증상으로
- 갑 등으로서는 선행소송의 변론종결 당시 그로 인한 손해의 발생을 예견할 수 없었다고 보아야 하므로
- 골관절염 등으로 인한 손해배상청구 부분은 선행판결의 기판력에 저촉되는 것이 아님에도
- 이와 달리 본 원심판단에 법리오해의 잘못이 있다고 한 사례
Unofficial English translation
• as symptoms newly arising after the close of oral argument in the prior lawsuit
• A and others could not have foreseen the occurrence of the loss attributable thereto at the time of the close of oral argument in the prior lawsuit, so that
• the portion of the claim for damages based on the osteoarthritis and the like was not barred by the res judicata of the prior judgment, and yet
• the judgment of the court below, deciding otherwise, was held to have misapprehended legal principles
Relation to precedent
Follows earlier decisions Stated in the decision
대법원 2007. 4. 13. 선고 2006다78640 판결
Unofficial English translation
Supreme Court Decision 2006Da78640 decided April 13, 2007
Decisions referred to
[1] 대법원 2007. 4. 13. 선고 2006다78640 판결(공2007상, 691)
Burden of proof
Not addressed Not in the decision
Open question and revisit condition
What evidence is enough at the retrial to show that a later sequel was not reflected in the medical appraisal of the earlier action, where the Supreme Court found only that it was very likely not reflected?
The retrial judgment of the Daegu High Court, once it examines the new symptoms and the foreseeability at the close of the earlier argument, will show how this test is applied to this record. A later Supreme Court decision treating same-site sequelae or the proof of non-reflection differently, or a change to Article 216(1) of the Civil Procedure Act or Article 750 of the Civil Code, would require this entry to be read again.
Cross-family AI independent reading & axis check
6 of 8 axes matched GPT-6 Astra (OpenAI, codex CLI) · 2026-10-25
A reader from another model family (GPT-6 Astra), given the official text but not the primary reading, agreed on 6 of the 8 axes; the readings differed on axis 4 (form of the test), axis 8 (open question and revisit condition).
Axis 4 (Form of the test): Primary “Elements stated” vs Independent “Existing test applied”
The primary frames the holding as a general requirement for special circumstances, while the independent reading applies that standard directly to the osteoarthritis facts of this case.
갑에게 발생한 골관절염 등은 선행소송의 변론종결 후에 새로 발생한 증상으로, 갑 등으로서는 선행소송의 변론종결 당시 그로 인한 손해의 발생을 예견할 수 없었다고 보아야 하므로Axis 8 (Open question and revisit condition): Primary “What evidence is enough at the retrial to show that a later sequel was not reflected in the medical appraisal of the earlier action, where the Supreme Court found only that it was very likely not reflected?” vs Independent “What amount of additional damages attributable to the newly arising conditions should be awarded on remand?”
The primary asks what evidence is needed to show the later sequel was not reflected in the earlier appraisal, while the independent reading asks what amount of additional damages should be awarded on remand.
적극적 손해의 배상을 명한 전소송의 변론종결 후에 발생한 새로운 적극적 손해가 전소송의 기판력에 저촉되지 않는 경우Raw responses and comparison record: Protocol · Blind readings (JSONL) · Axis comparison (JSONL) · SHA-256 (JSON)
Lower-court contrast & scope of application
Lower-court reading vs. Supreme Court holding
Lower-court context: The Daegu High Court, in its judgment of 24 July 2019 (2018Na20591), held that the osteoarthritis and related symptoms had arisen at the same bodily sites as the damage claimed in the earlier action, so they could hardly be treated as a new loss that could not have been foreseen at the close of argument there. It therefore dismissed all of the plaintiffs' claims for additional treatment costs and consolation money.
Supreme Court standard: The Supreme Court held that the symptoms, at least osteoarthritis, soft tissue impingement syndrome, cellulitis, peroneal nerve injury and tibial nerve injury, were sequels of the accident and the scar contracture but were very likely not reflected in the medical opinion or the earlier judgment. Since they were newly arising symptoms after the close of argument and could not have been foreseen then, the court below had misread the law on the res judicata effect of a final judgment and failed to conduct the necessary examination, an error affecting the judgment. It reversed the whole judgment and remanded the case to the Daegu High Court for retrial.
Distinguishing conditions
- A later symptom that was reflected in the medical opinion obtained in the earlier action or in the earlier judgment itself, so that it was not a new loss.
- A part of the claim that the claimant can be said to have abandoned when the earlier action closed its argument.
- Damage that could have been foreseen at the close of argument in the earlier action, since the rule turned on the inability to foresee it.
Record verification notes
Set the medical opinion in the earlier action, which put the future treatment cost at KRW 36 million for corrective surgery plus KRW 21 million for artificial dermis and assessed an 85 per cent loss of earning capacity, against the later opinions on osteoarthritis, reduced range of motion and a 50 per cent and 36 per cent loss, and mark what each covers. Then check the close-of-argument date of the earlier action and what was pleaded there, because the rule turns on whether the loss could be foreseen at that point. The amount of treatment actually incurred, KRW 180,060,604, matters only after the new loss is established.
From the official text
Points at issue
[1] 적극적 손해의 배상을 명한 전소송의 변론종결 후에 발생한 새로운 적극적 손해가 전소송의 기판력에 저촉되지 않는 경우 [2] 갑은 유치원생이던 때에 을이 피워놓은 불이 바지에 옮겨붙어 화염화상을 입었고, 이에 갑에게 발생한 외모 및 기능적 손실에 대한 향후치료비의 감정이 이루어졌으며, 이를 전제로 선행판결도 내려졌는데, 이후 갑이 골관절염 등으로 인한 추가적인 치료를 받게 되자 갑 등이 이는 선행소송의 변론종결 당시에는 예견할 수 없었던 새로운 손해라고 주장한 사안에서, 제반 사정에 비추어 갑에게 발생한 골관절염 등은 선행소송의 변론종결 후에 새로 발생한 증상으로, 갑 등으로서는 선행소송의 변론종결 당시 그로 인한 손해의 발생을 예견할 수 없었다고 보아야 하므로, 골관절염 등으로 인한 손해배상청구 부분은 선행판결의 기판력에 저촉되는 것이 아님에도, 이와 달리 본 원심판단에 법리오해의 잘못이 있다고 한 사례
Unofficial English translation
[1] Where new affirmative loss arising after the close of oral argument in a previous lawsuit awarding damages for affirmative loss is not barred by the res judicata of the previous lawsuit [2] A case in which, when A was a kindergarten child, a fire set by B spread to A's pants and A suffered flame burns; an appraisal was conducted of the future treatment expenses for the cosmetic and functional loss suffered by A, and a prior judgment was rendered on that basis; thereafter, when A underwent additional treatment for osteoarthritis and the like, A and others asserted that this was new loss that could not have been foreseen at the close of oral argument in the prior lawsuit, and it was held that, in light of all the circumstances, the osteoarthritis and the like that developed in A were symptoms newly arising after the close of oral argument in the prior lawsuit and that A and others could not have foreseen the occurrence of the loss attributable thereto at the time of the close of oral argument in the prior lawsuit, so that the portion of the claim for damages based on the osteoarthritis and the like was not barred by the res judicata of the prior judgment, and yet the judgment of the court below, deciding otherwise, was held to have misapprehended legal principles
Summary of the holding
The official text publishes no summary of the holding for this decision. The quotation and factors in this record are copied verbatim from the points at issue; the evidence for each axis is taken from the points at issue, the order and the reasons.
Order
원심판결을 파기하고, 사건을 대구고등법원에 환송한다.
Unofficial English translation
The judgment of the court below is reversed, and the case is remanded to the Daegu High Court.
Provisions referred to
[1] 민사소송법 제216조 제1항, 민법 제750조 [2] 민사소송법 제216조 제1항, 민법 제750조
Read 2026-10-25 · Cross-read 2026-10-25. All quotes matched against the official text. The Chinese-character placeholders the court used for anonymised parties are given in their Korean readings, and parenthetical Chinese-character glosses are omitted.
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