2013Ga21157 (Counterclaim) Confirmation of the right to claim the withdrawal of deposit money.

2. Of the costs of lawsuit, the part concerning the principal lawsuit shall be borne by the Plaintiff (Counterclaim Defendant) and the part concerning the counterclaim by the Defendant (Counterclaim Plaintiff) respectively.

Counterclaim: On April 27, 2009, the Korea Expressway Corporation confirmed that the right to claim deposit payment of KRW 2,243,292,250 deposited by this Court No. 3329 was against the Defendant (Counterclaim Plaintiff; hereinafter referred to as the “Defendant”).

A. Title trust and land division circumstances concerning the land before the division;

(1) The defendant is a clan naturally created for the purpose of religious rites for the ancestor worship, the protection and preservation of graves, the friendship among the members of the clans C, as well as the friendship among the descendants of C, who are descendants of C. The defendant is a clan that is naturally created for the purpose of religious rites of C, including the tombstones of B 14 years old.

(2) On November 26, 1971, the Defendant held a title trust with H (Death on March 5, 2001), I (Death on April 3, 1989), and J respectively, the registration of preservation of ownership was completed in the name of H, I, and J with respect to one-third of each of the above lands under the name of H, J, respectively.

(3) On June 7, 2003, F land was divided into 14,568 square meters of F forest, 4,347 square meters of K forest, 3,208 square meters of L forest. ① Among them, on September 3, 2007, K forest 4,347 square meters of K forest was converted into 4,448 square meters of land, 236 square meters of H forest, 46 meters of O forest, and 3,319 square meters of P forest and 46 square meters, on May 26, 2009; ② on September 3, 2007, K forest 4,347 square meters of K forest and 4,347 square meters of land was divided into 15 square meters of Q forest and 46 square meters of land, 3,319 square meters of land and 97 square meters of forest and 197 square meters of forest and 197 square meters of forest and 298 square meters of forest were divided into m, 297,794,794.

(4) In addition, on August 29, 2006, G land was divided into a correction of registered matters and registration conversion of the land of 1,025 square meters in the Yeongdeungpo-gu U.S. U. 139 square meters, V forest 69 square meters, and W forest 817 square meters. On May 29, 2008, G land was re-divided into a square village of 139 square meters in the U.S. 139 square meters, V forest 69 square meters, and a square village of 817 square meters in the Jung-gu Seoul Special Metropolitan City.

B. The details of the termination of title trust and the registration of transfer of ownership in the name of the plaintiff

(1) On October 19, 199, the Defendant filed a lawsuit against H, I, and J, etc. against the title trustee for the registration of ownership transfer on the land before the split-off under this Court 99Gahap13297, and received a favorable judgment from the court on October 19, 199. The above judgment became final and conclusive on December 8, 199.

(2) In the event that the Defendant did not complete the registration of ownership transfer according to the above final judgment, the land before division was designated as a housing site development zone and expected to be more compensation. At the time, Y et al., the Defendant’s representative, who formed a new organization consisting of only the descendants of BC 25 years old, AAA, and AB, among the Defendant’s paper members, to vest the ownership of the land before division in the pertinent organization. On August 12, 2000, the Defendant held an extraordinary general meeting and resolved to dissolve the Defendant, establish a new organization solely by ZA, AA, and AB descendants to vest in the relevant organization, and then establish a resolution to vest the land before division in the relevant organization. In accordance with the above resolution, Z, AA, and AB’s descendants, Y et al. (hereinafter referred to as “AC-friendly council”).

(3) Afterwards, AC branch filed a lawsuit against H, I, and J for ownership transfer registration on the land before subdivision as of August 12, 2000, which was based on an agreement made on August 12, 200 with H, I, and J (hereinafter “the first lawsuit”), and was sentenced to a winning judgment from this court on March 16, 200. The above judgment became final and conclusive on April 25, 2001, and based on the above final judgment, the registration of ownership transfer was completed in the name of AC branch on the land before subdivision on June 7, 2004.

(4) On June 23, 2004, AC-affiliated association sold to AD a 236-meter square meters of Na, V forest, Q forest, 15m2, R forest, 2864m2, X forest, and X 668m2 (hereinafter collectively referred to as “each of the instant lands”), and accordingly completed the registration of ownership transfer in the name of AD on July 23, 2004. AD donated each of the instant lands to the Plaintiff on October 18, 2007, and completed the registration of ownership transfer in the name of the Plaintiff on October 24, 2007.

C. The progress of the relevant civil procedure between the defendant and the family council AC

(1) Meanwhile, on October 8, 2004, the Defendant filed a lawsuit seeking the cancellation of the registration of each of the above transfer of ownership under the name of J, H, and I, the title trustee of the land prior to subdivision, against each of the inheritors of J, H, and I, who were the title trustee of the land prior to subdivision, for the implementation of the ownership transfer registration procedure based on the termination of title trust as to the land prior to subdivision, and for the above title trustee, by subrogationing the above title trustee, for the land of this case, which is part of the land prior to subdivisions Association AC and AD and AD (hereinafter referred to as the “second lawsuit”).

(2) Since the above lawsuit was concluded by the first instance court and the appellate court [Seoul High Court 2005Na6374, 206Na3648 (Counterclaim)], and the court of final appeal (Supreme Court 2007Da86037) reversed and remanded shares, the judgment of the first instance court (Seoul High Court 2008Na7169 (principal lawsuit), 2008Na71666 (Counterclaim)) was finally affirmed by the Supreme Court 209Da30120 Decided June 25, 209, each of the above lawsuit filed against the title trustee for the cancellation of the ownership transfer registration under the title of the first instance court and the third instance court's judgment that had no authority to dispose of shares in the title of the first instance court and the third instance court's judgment that had become final and conclusive on the ground that the ownership transfer registration of the first instance court's land was invalid by the first instance court and the third instance court's judgment that had no authority to dispose of shares in the title of the first instance.

D. The particulars of the expropriation of each land of this case and the deposit of compensation for losses

After that, each of the instant lands was incorporated into a site for road projects related to the Gyeongbu Highway Extension Works (Seoul Metropolitan Area 3j), and the Korea Expressway Corporation deposited KRW 2,243,29,292,250 as compensation for losses incurred from the expropriation of each of the instant lands (hereinafter referred to as the “deposit of this case”) on April 27, 2009, under Article 40(2)2 of the Act on the Acquisition of Land, etc. for Public Works and the Compensation Therefor, after receiving a ruling from the Central Land Expropriation Committee on the expropriation of each of the instant lands on March 26, 2009.

[Ground of Recognition] Facts without dispute, Gap evidence 1 to 3, Eul evidence 1 to 7 (including each number), the purport of the whole pleadings

2. Judgment on the plaintiff's main claim

A. The plaintiff's assertion

The Plaintiff, in accordance with the final judgment of the second lawsuit, recognized the ownership of AD with respect to one-third portion of each of the instant lands, and the Plaintiff acquired ownership of the said one-third share from AD with respect to the said one-third share. As such, the Plaintiff asserted that he/she had the right to be paid an amount equivalent to one-third of the compensation for the expropriation of each of the instant lands, and that he/she had the right to be paid an amount equivalent to 747,764,083 out of the instant deposit amount

X 1/3) seek confirmation of the fact that the right to claim for supply to the plaintiff is against X 1/3.

B. Determination

(1) The res judicata of a final and conclusive judgment does not affect the conclusion of the judgment on the existence of legal relations alleged as a subject matter of lawsuit, and does not affect the existence of legal relations, and thus, even if the plaintiff filed a lawsuit against the defendant for cancellation of the registration on the ground that the registration of ownership transfer in the name of the defendant concerning the disputed real estate is null and void, and the judgment of dismissal became final and conclusive upon the judgment of dismissal, res judicata of the final and conclusive judgment does not extend only to the existence of the claim for cancellation registration or the claim for transfer registration alleged as a subject matter of lawsuit (see, e.g., Supreme Court Decision 2002Da11847, Sept. 24, 2002).

(2) Based on the above legal principles, the Defendant filed a lawsuit seeking the cancellation of the ownership transfer registration in the name of the Health Council, J and H, and I on October 8, 2004 on each of the instant land, which is part of the land before subdivision, on behalf of the inheritors of the J and I, who are the title trustee of the land before subdivision, and the two lawsuits seeking the cancellation of the ownership transfer registration in the name of D, which is part of the instant land before subdivision. As a result, the court rejected the Defendant’s claim for the cancellation of ownership transfer registration in the name of P and H, and the title transfer registration in the name of AD on each of the instant land on the ground that the ownership transfer registration in the name of P and H, 1/3 of each of the instant land is null and void. However, the Defendant’s claim for the cancellation of ownership transfer registration in the name of D and D on each of the instant land under the name of D and D on each of the instant land that became final and conclusive on the ground that the ownership transfer registration in the name of D and D on each of each of the instant land in its original name cannot be seen.

Rather, in addition to the statements in the evidence Nos. 8 and 9, it is reasonable to view that the agreement on August 12, 2008, which was the cause of the act of causing the transfer of ownership in the name of AC relatives' meeting, is null and void as it constitutes an anti-social legal act. As such, AC-friendly association did not acquire the ownership of 1/3 of the shares in the name of J among each land of this case, and AD purchased the shares from AC-class relatives' association, an unentitled person, was not entitled to acquire the ownership of 1/3 of the shares in the name of J, and thus, the Plaintiff did not acquire the ownership of the shares.

Since it cannot be deemed that there is a right to receive the amount equivalent to 1/3 of the compensation for losses incurred by the expropriation of each land of this case, the prior plaintiff's assertion on a different premise is without any need to further examine the remainder.

3. Judgment on the defendant's counterclaim

A. The defendant's assertion

The defendant asserts that he is the true owner of each of the lands of this case, and that he is entitled to receive the full amount of compensation for losses incurred from the expropriation of each of the lands of this case, and sought confirmation against the plaintiff about the fact that the right to claim for payment of compensation for damages of this case exists to the defendant.

B. Determination

Therefore, as seen earlier, it is insufficient to recognize that the Defendant is the real owner of each of the lands of this case solely on the ground that the Defendant’s title trust was terminated against the above title trustee or his heir on the ground that the Defendant was unable to perform the obligation to transfer ownership of each of the lands of this case, and that the registration of ownership was completed on November 26, 1971 under the name of H, I, and J as to one-third of each of the lands of this case. However, as long as there is no assertion or proof as to the situation of each of the lands of this case or the fact that the registration of ownership transfer or the registration of ownership transfer was completed under the name of the Defendant, it is insufficient to recognize that the Defendant is the real owner of each of the above lands of this case. Thus, the Defendant cannot seek compensation for damages from the above title trustee or his heir on the ground that the Defendant’s right to claim compensation for damages against the Plaintiff under the name of the title trustee or his heir, or the right to claim compensation for damages against the Plaintiff under the premise that the Defendant is the real owner of each of the above land.

4. Conclusion

Therefore, the plaintiff's main claim and the defendant's counterclaim are dismissed as it is without merit. It is so decided as per Disposition.

Judges Lee Il-sung

Judges Lee Dong-ho