[소유권이전등기][집28(1)민,139;공1980.4.15.(630),12662]
(a) A case that does not conflict with res judicata;
(b) Whether a judgment can be rendered by receiving and repaying the consideration even in cases where it is obvious that no counter-performance exists in a lawsuit claiming registration of transfer of ownership;
A. In the case of a claim for ownership transfer registration or a suit filed by the former or the latter for the same sale of the same real estate, the plaintiff's claim is rejected because it is not recognized after claiming the price reduction. If the subsequent suit is filed after paying the price claimed for the reduction, the subsequent suit does not conflict with the res judicata effect of the previous suit.
B. The claim should be dismissed if it is obvious that the claim is not a counter-performance, since the court orders the seller to implement the procedure for registration of ownership transfer in return for payment and redemption is included in the case where the buyer merely requests the registration of ownership transfer and the seller raises a defense of simultaneous performance.
Articles 202 and 227 of the Civil Procedure Act, Article 536 of the Civil Act
[Judgment of the court below]
Defendant
Seoul High Court Decision 79Na1126 delivered on December 4, 1979
The original judgment is reversed, and the case is remanded to the Seoul High Court.
The grounds of appeal by the Plaintiff’s attorney are examined.
According to the court below's decision, the plaintiff filed a lawsuit against the defendant prior to the filing of the lawsuit in this case against the defendant for the execution of the procedure for ownership transfer registration pursuant to the sales contract on November 23, 1976, but the judgment against the plaintiff was finalized, but the judgment against the plaintiff was finalized. Thus, the court below held that the plaintiff's claim in this case is contrary to the res judicata effect of the final judgment against the previous lawsuit which denied the right to claim ownership transfer registration.
However, according to the records, if the plaintiff agreed that he would waive 2.7 million won out of the purchase price if he did not exclude the above 2.7 million won from the urban planning among the subject matter of sale and purchase, the court cannot recognize the fact of the above agreement, but it cannot accept the plaintiff's claim on the premise that 2.7 million won has been reduced since the defendant did not exclude it, but the plaintiff's claim was rejected, but it cannot be deemed that the plaintiff's claim again was in conflict with the res judicata effect of the previous claim for the sale and purchase of real estate after paying 2.7 million won out of the sale and purchase price after the closing of the previous claim. The court below stated that the plaintiff's claim for the transfer registration of ownership in the sale and purchase contract of real estate was made simultaneously with the establishment of the sale and purchase contract regardless of whether the purchaser paid the purchase price or not, and that the seller's claim for the transfer registration of ownership was made in conflict with the principle of res judicata effect against the plaintiff's claim for the transfer registration of ownership in the previous claim for sale and purchase and sale of real estate.
Justices Kang Jae-hee (Presiding Justice)