B. Whether the existence of a final and conclusive judgment is an ex officio matter (affirmative)

(c) Whether, where a third party registers the transfer of ownership based on a final and conclusive judgment against the registered titleholder, the occupant of real estate may seek the cancellation of the registration of transfer of ownership in the name of the third party in subrogation of the original registered titleholder, where the third party registers the transfer of ownership based on the completion

B. In a case where the existence of a right or legal relation disputed in a lawsuit has already been dealt with in a prior suit between the same parties, and a final judgment thereon has been rendered, the parties cannot make any arguments that conflict with this, and the court may not make any judgment that conflict with this, and the existence of a final judgment above should not be examined and determined by the court ex officio, even if there is no allegations

C. Where the possessor of real estate files a lawsuit against the registered titleholder and the third party registers the ownership transfer by obtaining a final and conclusive judgment on the execution of the procedure for the registration of ownership transfer of the real estate from the time when the possessor of real estate fails to register the ownership transfer by reason of the completion of acquisition by prescription, the possessor of real estate cannot seek the cancellation of the registration of ownership transfer in the name of the third party, which conflict with the res judicata effect of the above final and conclusive judgment, on behalf of his/her former registered titleholder,

The costs of appeal are assessed against the plaintiff.

In light of the records, when the plaintiff filed a claim against the defendant 1 for the implementation of the procedure for the cancellation of ownership transfer registration as to the site of this case by subrogation of the defendant 2, defendant 3, etc., the plaintiff did not assert that the defendant 2, etc. entrusted the ownership of the above site with the defendant 1 as the cause of the claim, and it cannot be deemed that the other assertion of this case is included in the plaintiff's other assertion of this case. It is clear that the court's exercise of the right to ask for the explanation of the above purport. The court's exercise of the right to ask for explanation is an opportunity to correct the contradictions or incomplete arguments of the parties and urge the submission of evidence in order to clarify the issue, so even if the parties did not recommend the submission of the requirements or means of attack defense as to the legal effect that did not have been asserted,

Therefore, even if the court below did not exercise the right of explanation as to the termination of the title trust without the defendant's proof at all in the pleadings of this case and did not deliberate and decide on it, it cannot be said that there is no error of law. Therefore, the argument is without merit.

The grounds of appeal No. 2 are examined.

According to the records, the plaintiff's seeking the cancellation of the ownership transfer registration under the name of the defendant 1 by subrogation of the defendant 2 and the defendant 3 is a theory that the defendants did not specifically assert it in the pleadings of this case as to the effect that it would conflict with the res judicata of the final judgment between the above defendants. However, in a case where the existence of rights or legal relations being disputed in the lawsuit is already dealt with in the previous suit between the same parties, and there is a final judgment on it, the parties cannot make any arguments that conflict with this, and the court may not make any decision that conflict with this. The existence of the final judgment above should not be examined and decided by the court ex officio, even if there is no allegations by the parties (see Supreme Court Decision 89Da2329 delivered on October 23, 1990; 89Nu1308 delivered on October 10, 198).

Therefore, the court below's rejection of the plaintiff's above part of the claim against defendant 1 on the ground that it goes against the res judicata of the final and conclusive judgment of the previous suit, is justified, and there is no violation of the principle of pleading, and therefore there is no ground for the argument

The grounds of appeal No. 3 are examined.

Where a third party files a lawsuit against a registered titleholder and registers the ownership transfer by obtaining a final and conclusive judgment on the execution of the procedure for the registration of ownership transfer of the real estate from the time when the possessor of the real estate fails to register the ownership transfer due to the completion of prescription, the possessor of the real estate cannot seek the cancellation of the registration of ownership transfer in the name of the third party that conflict with the res judicata effect of the above final and conclusive judgment in subrogation of Dong in order to preserve his/her right to claim the registration of ownership transfer of the original registered titleholder unless the above final and conclusive judgment is null and void or revoked by litigation for retrial (see, e.g., Supreme Court Decisions 87Da1836, Feb. 23, 198; 80Da1837, Dec. 9, 1980; 74Da2229, Aug. 19, 1975; 67Da1312, Aug. 29, 1967).

The court below is justified in holding that the plaintiff cannot file a claim for cancellation of the above registration under the name of defendant 1 on behalf of the plaintiff 2, etc. in order to preserve the right to claim for cancellation of the ownership transfer registration against the above defendant 2, etc. before the above final judgment is null and void or cancelled or changed due to retrial, since the plaintiff filed a lawsuit against the defendant 2, defendant 3, who is the deceased non-party's joint property heir of the above site while the plaintiff did not complete the ownership transfer registration for the reason of the completion of the acquisition of ownership transfer registration for the above site. The court below is justified in holding that the above final judgment cannot be filed for cancellation of the above registration under the above name of defendant 1 on behalf of the plaintiff 2, etc., even though the above final judgment was made by pretending to the sale between the parties. Thus, we cannot accept the argument based on the dissenting opinion.

The grounds of appeal No. 4 are examined.

As seen above, in order to preserve the right to claim the registration of ownership transfer based on the completion of the acquisition by prescription against Defendant 2, etc., who is the property heir of the above non-party, who is the original titleholder of the instant building site, as seen above, the Plaintiff’s right to claim the implementation of the procedure for the registration of ownership transfer registration under Defendant 1, in subrogation of such right in order to preserve the right to claim the registration of ownership transfer based on the completion of acquisition by prescription against the above non-party’s property heir, etc., is not allowed due to the res judicata effect between the above Defendants, it shall be deemed that the obligation of Defendant

Therefore, the appeal is dismissed and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Park Jong-dong (Presiding Justice) Kim Sang-ho (Presiding Justice)