[2] Whether the losing party can file a claim for the registration of ownership transfer for the restoration of the true title based on ownership (affirmative)

[2] The res judicata effect of a final and conclusive judgment only affects the conclusion of the judgment on the existence of legal relations alleged as a subject matter of lawsuit, and it does not affect the existence of legal relations, and even if the judgment that cited cancellation of ownership transfer registration on real estate becomes final and conclusive, res judicata effect of the final and conclusive judgment only affects the existence of the right to claim cancellation registration, which is a subject matter of lawsuit, and it does not affect the existence of the right to claim cancellation registration on the premise thereof, and thus, the party who has lost in a lawsuit claiming cancellation of ownership transfer registration can seek confirmation

1. On the first ground for appeal

It is pointed out in the ground of appeal that the facts acknowledged in a civil final and conclusive judgment also become significant evidence in other cases, unless there are special circumstances. However, in the case of this case where it is deemed difficult to adopt a factual judgment of the civil final and conclusive judgment in light of other evidence, such as the criminal judgment which became final and conclusive after it, it can be rejected (see Supreme Court Decision 92Da22121 delivered on November 10, 192).

The court below, based on the evidence adopted by the court below, rejected the previous civil final judgment, which is contrary to the above legal principles, in recognizing the fact that the plaintiff acquired ownership by taking over the ownership transfer registration in its name on October 23, 1978, after purchasing from Nonparty Kim Jae-dong 90-dong, Seoul Special Metropolitan City, Nowon-gu's 90-dong (hereinafter "the site in this case") the transfer of ownership from the former owner of Kim Kim, who was the former owner of the land. There is no violation of the rules of evidence. The grounds for appeal pointing this out are not acceptable.

2. On the second ground for appeal

A confession binding under Article 261 of the Civil Procedure Act shall be limited to a confession in court. A confession in court refers to a statement of facts unfavorable to himself/herself, consistent with the allegations of the other party, at the date of pleading or the date of preparation procedure, and the confession in another lawsuit is merely a ground for evidence, and is not binding under Article 261 of the Civil Procedure Act (see Supreme Court Decision 92Da22121, Nov. 10, 1992).

As the Plaintiff’s statement at the second date of pleading of Seoul Civil Procedure District Court 81Gahap4500 case, which is different from the instant case, cannot be deemed to be a confession in the instant case, the lower court rejected the contents set forth in the protocol (No. 19, No. 28-10 of the evidence No. 28) on the date of pleading by other evidence, and cannot be deemed to have violated the judgment against Article 147 of the Civil Procedure Act and Article 261 of the Act on the probative value of the protocol. The grounds for appeal pointing this out shall not be accepted.

3. On the third and fourth points

A. The res judicata effect of a final and conclusive judgment only affects the conclusion of the judgment on the existence of legal relations alleged as a subject matter of lawsuit, and it does not affect the existence of legal relations, even if the judgment that cited cancellation of ownership transfer registration on real estate becomes final and conclusive, res judicata effect of the final and conclusive judgment only affects the existence of the right to claim cancellation registration, which is a subject matter of lawsuit, and it does not affect the existence of the right to claim cancellation registration on the premise thereof, and thus, the party who has lost in the lawsuit claiming cancellation of ownership transfer registration can either seek confirmation of ownership or file a claim for registration of ownership transfer for the restoration of the true owner’s name (see, e.g., Supreme Court en banc Decision 89Meu12398, Nov. 27, 1990; Supreme Court Decision 92Da22121, Nov. 10, 1992; Supreme Court Decision 94Da30829, Mar. 10, 1995).

According to the reasoning of the judgment of the court below, after the plaintiff received the registration of ownership transfer as to the site in this case from the Kim Mobilization, the judgment of the court below that held on October 23, 1986 that the registration of ownership transfer in the name of the plaintiff in this case was made for the purpose of securing the obligation to the non-party in the non-party in the non-party in the name of Kim Mobilization and that on October 23, 1986, the registration of ownership transfer in the name of the plaintiff in this case was made for the purpose of securing the obligation to the non-party in the non-party in the non-party in the non-party in the register of ownership transfer, and that the plaintiff received the above obligation and followed the procedure for the registration of ownership transfer, the registration of ownership transfer in the name of the plaintiff in this case was cancelled in accordance with the final judgment, and thereafter the registration of ownership transfer was made in accordance with the protocol between the mobilization in the first instance of the lawsuit in this case and the mutual recognition and recognition between the defense.

However, as seen earlier, inasmuch as the Plaintiff purchased the instant site from Kim Mobilization and completed the registration of ownership transfer, then the registration of ownership transfer in the Plaintiff’s name was made for the purpose of securing obligations against the transfer order of Kim mobilization, even if the registration was cancelled based on the final judgment accepting the Plaintiff’s claim for cancellation of ownership transfer registration under the condition that the Plaintiff met the obligation, this does not lose the effect of acquiring the Plaintiff’s ownership as to the instant site (see Supreme Court Decision 87Meu2431, Dec. 27, 198). Thus, even after the registration of ownership transfer in the name was cancelled, the Plaintiff may request the Plaintiff to register ownership transfer in the name of Kim Mobilization, the former owner of the instant site, after the registration of ownership transfer in the name of Kim Mobilization was transferred to the former owner, and then the registration of ownership transfer in the name of the former owner was made. The existence of ownership transfer registration in the name of the Plaintiff, which is the subject matter of the above final judgment, cannot be seen as a claim for res judicata effect between the Plaintiff and the parties to the above final judgment.

In the above purport, the res judicata effect of the above final judgment and the protocol of recognition does not extend to this case, and the defendants are obligated to implement the procedure for ownership transfer registration for the reason of the restoration of real name to the plaintiff who is the real owner of the land in this case. The judgment of the court below is just, and there is no error of law by misunderstanding the res judicata effect of the final judgment and the protocol of recognition and recognition or the law of executory power as otherwise alleged in the ground of appeal

4. Therefore, all appeals are dismissed, and the costs of appeal are assessed against the defendants who are appellant. It is so decided as per Disposition with the assent of all Justices who reviewed the appeal.

Justices Park Jong-chul (Presiding Justice)