Dismissal (with prejudice)

A judicial decision by which a court terminates a case without a hearing on the merits because the lawsuit does not meet the procedural requirements.

Dismissal (with prejudice)

Overview

Dismissal (with prejudice) (기각, 棄却) refers to a court's decision or judgment that terminates a case without a hearing on the merits, on the grounds that the filed lawsuit, appeal, or motion does not satisfy legal requirements or is without merit. It is similar to 'rejection' (각하), which dismisses the plaintiff's claim as unfounded, but differs in that rejection is based on defects in the procedural requirements themselves, whereas dismissal (with prejudice) occurs when the procedural requirements are met but the substance of the claim is found to be legally groundless. Once a dismissal (with prejudice) becomes final, res judicata (기판력) attaches, preventing the same matter from being re-litigated.

Main Content

Concept and Legal Nature of Dismissal (with prejudice)

Dismissal (with prejudice) is a judgment by which a court, after examining the merits of the case (本案), determines that the plaintiff's arguments are legally unfounded and rejects the claim. It is rendered when all procedural requirements (e.g., party capacity, court jurisdiction, interest in the lawsuit) are satisfied, but the claim itself lacks a legal basis or is not proven. Once a dismissal (with prejudice) judgment becomes final, the same cause of action cannot be re-filed (res judicata), marking the final termination of the lawsuit.

Difference Between Dismissal (with prejudice) and Rejection

Both dismissal (with prejudice) and rejection reject the plaintiff's claim, but they differ in their grounds and legal effects. Rejection terminates a case without a hearing on the merits due to defects in procedural requirements (e.g., expiration of the filing period, improper party, duplicate lawsuits). In contrast, dismissal (with prejudice) is rendered after a hearing on the merits when the procedural requirements are lawful but the claim is found to be without merit. A rejected case can be re-filed after curing the procedural defects, whereas a dismissed (with prejudice) case cannot be re-filed on the same claim, representing a substantive difference.

Types of Dismissal (with prejudice)

Dismissal (with prejudice) is broadly divided into dismissal of a claim in a lawsuit and dismissal of an appeal or motion. Dismissal of a claim in a lawsuit occurs when the plaintiff's claim is deemed legally unfounded—for example, when the plaintiff fails to prove the existence of a contract in a breach of contract suit, or when the occurrence of damages is not recognized in a damages claim. Dismissal of an appeal or motion occurs when the court finds the appeal or motion without merit—for example, when a provisional seizure motion fails to meet legal requirements, or when a stay of execution motion lacks urgency or necessity.

Procedure and Effects of Dismissal (with prejudice)

Dismissal (with prejudice) may be pronounced by a judgment after oral argument or by a court order. When dismissed by judgment (e.g., dismissal of a claim in a merits lawsuit), an appeal (항소·상고) is possible; when dismissed by order (e.g., dismissal of a provisional seizure motion), an immediate appeal (즉시 항고) is possible. Once a dismissal (with prejudice) becomes final, the same matter cannot be re-litigated (res judicata), signifying the final termination of the lawsuit. However, even after a dismissal (with prejudice) judgment, a separate lawsuit may be filed if new grounds or evidence are discovered (e.g., a petition for retrial).

Examples of Dismissal (with prejudice)

Common examples of dismissal (with prejudice) in practice include the following. First, in a damages claim filed by the plaintiff, if the court does not recognize the occurrence of damages or causation, a judgment dismissing the claim is rendered. Second, in an administrative lawsuit, if the plaintiff argues the illegality of an administrative disposition but the court does not accept it, a judgment dismissing the claim is rendered. Third, in a provisional seizure motion, if the court does not recognize the need for preservation or urgency, an order dismissing the motion is issued. Fourth, in an appeal case, if the court finds the appellant's appeal without merit, an order dismissing the appeal is issued.

Recent Trends

From 2024 to 2025, an increasing trend in dismissal (with prejudice) judgments has been observed in Korean courts. In particular, following the COVID-19 pandemic, increased economic uncertainty has led to a surge in contract disputes and damages claims, resulting in more cases where courts dismiss claims due to lack of evidence or insufficient legal grounds. Additionally, the 2024 amendment to the Civil Procedure Act clarified the standards for dismissal (with prejudice) judgments to promote litigation efficiency and provided a basis for courts to strengthen ex officio evidence investigations, thereby enhancing the accuracy of such judgments. In 2025, the introduction of an AI-based legal document analysis system has allowed courts to quickly review similar precedents and legal principles when deciding on dismissal (with prejudice), improving the consistency of such judgments. In the field of administrative litigation, stricter environmental and safety regulations have increased lawsuits challenging the legality of administrative dispositions, leading to a higher rate of dismissal (with prejudice) of plaintiffs' claims. This trend is seen as part of the courts' efforts to prevent abuse of litigation and maintain legal stability.