[소유권이전등기말소청구사건][고집1975민(2),11]
Whether res judicata effect of judgment on subrogation lawsuit by obligee extends to the obligor
In case where a judgment against a third party obligor becomes final and conclusive by means of exercising a creditor's subrogation right against a third party obligor, if the obligor becomes aware of the fact that the lawsuit is pending, the obligor cannot make a claim with the same content as the obligor in the judgment.
Article 404 of the Civil Act, Article 204 of the Civil Procedure Act
Supreme Court Decision 4291Da529 delivered on February 25, 1960 (Supreme Court Decision 7346 delivered on July 7, 1960, Article 204(8)905 of the Civil Procedure Act) 74Da1664 delivered on May 13, 1975 (Supreme Court Decision 10958Da10958 delivered on May 13, 1975, Supreme Court Decision 23Du30 delivered on June 30, 200, Supreme Court Gazette 404(34)403 of the Civil Act, Court Gazette 515No8458 pages
Plaintiff
Defendant 1 and one other
Daegu District Court (73Gahap15) in the first instance
The part of the original judgment against Defendant 1 among the original judgment shall be revoked, and the lawsuit against the said Defendant shall be dismissed.
The plaintiff's appeal against the defendant 2 and the conjunctive claim in the trial are dismissed.
All the costs of lawsuit shall be borne by the plaintiff in the first and second instances.
The original judgment shall be revoked.
Defendant 1 shall implement the registration procedure for transfer of ownership based on sale on July 28, 1958 with respect to the real estate recorded in the attached list to the Plaintiff.
Defendant 2: (a) performed the provisional registration for preserving the claim for ownership transfer registration due to the purchase and sale reservation on April 1, 1970 of the Daegu District Court No. 13958 of Apr. 2, 1969; (b) and each procedure for cancellation of ownership transfer registration due to purchase and sale on April 1, 1969 (the first instance court’s revocation of the agreement between Defendant 2 and Defendant 1 on Apr. 1, 1969; and (c) sought revocation of the fraudulent act to implement the procedure for cancellation of each of the above provisional registration and ownership transfer registration on Apr. 10, 1970).
All the costs of lawsuit shall be borne by the Defendants in the first and second instances.
The Plaintiff’s legal representative was originally built a direct factory on the land of the industrial site, which is the land owned by Nonparty 1 in Daegu-si. However, Defendant 1 obtained the right to purchase the land of this case from Daegu-si on November 28, 1957. On July 28, 1958, the Plaintiff purchased the above land and buildings from Defendant 1 in exchange for 20 million won, and paid the full payment of the price. On the above land, the ownership transfer registration was completed, but the ownership transfer registration was completed but the provisional registration and the ownership transfer registration was completed, which were the same as the purport of the Plaintiff’s claim to the Plaintiff, without the completion of the ownership transfer registration, without the completion of the ownership transfer registration from the Daegu-si City. Accordingly, the Plaintiff’s claim for the above provisional registration and the ownership transfer registration should be cancelled as the ground for invalidation, which became final and conclusive by the court of Daegu-si on the ground that the Plaintiff’s claim for sale and purchase did not become final and conclusive on the ground that it did not affect the Plaintiff’s right to purchase.
Therefore, as the plaintiff, who knows that the non-party company has subrogated the plaintiff by subrogation of the creditor's subrogation right, cannot re-examine the same claim in conflict with the res judicata of the judgment against the above judgment against the plaintiff, the plaintiff's claim against the defendant 1 should be dismissed in the absence of further determination.
Next, the Plaintiff’s claim against Defendant 2 was made without any cause, and the Plaintiff’s legal representative asserted that the above registration was made without any cause. As such, in double selling, the effect of the registration of the Defendant’s name which was first registered is sought to be denied. However, even according to all evidence offered by the Plaintiff, the registration of the said Defendant’s name is not deemed to have been made without any cause, and the Plaintiff did not impose the provisional injunction prior to the registration, and thus, the above claim is groundless.
As the plaintiff's conjunctive claim against the defendant 2, the plaintiff sold the land of this case purchased from the defendant 1 on July 28, 1958 to the non-party 1 corporation on October 10, 1961. The defendant 1 was unable to perform the duty of transfer of ownership due to the reason that the plaintiff did not transfer the registration of transfer of ownership to the plaintiff, and the plaintiff paid compensation amounting to 30 million won to the non-party company on February 10, 1969. Thus, it is difficult for the plaintiff 1 to have the damage claim amounting to at least 30 million won due to the defendant's failure to transfer the registration, and it is difficult for the plaintiff 1 to lawfully conclude that the plaintiff 1 violated the contract's obligation of transfer of ownership to the non-party 2 to purchase and sell the land of this case, which is the only property of this case, by disposing of it to the defendant 2 for the purpose of evading its obligation, and there is no other dispute between the plaintiff 1 and the defendant 1's allegation that the above contract did not exist.
Therefore, the plaintiff's conjunctive claim on the premise that the plaintiff has a claim of KRW 30 million against the defendant 1 is groundless without further examination.
Therefore, the plaintiff's claim against the defendant 1 among the plaintiff's claims in this case should be dismissed as an illegal lawsuit in conflict with the res judicata, even though the original judgment dismissing this claim on the merits, the original judgment which was improper and dismissed is dismissed, and the plaintiff's claim against the defendant 2 for revocation of the principal claim against the defendant 2 and the claim for revocation of the principal claim against the defendant 2 in the first instance trial is justified, and the original judgment which dismissed the plaintiff's claim against the defendant's principal claim against the defendant is just, and it is so decided as per Disposition by the application of Articles 96, 95, and 89 of the Civil Procedure Act as to the plaintiff's appeal against
[Attachment]
Judges Kang Jae-il (Presiding Judge)