[가옥명도,소유권이전등기말소][공1983.2.15.(698),275]
(a) In a lawsuit between the same party against whom a final and conclusive judgment to cancel registration of ownership transfer becomes final and conclusive, whether the grounds for new invalidation of grounds for registration are asserted;
(b) The case holding that the lawsuit seeking the cancellation of the former registration is a separate lawsuit, in subrogation of the nominal holder on the ground that the former registration was invalidated on the ground that the former registration was made, but the latter registration was made as a collateral for debt, but the latter registration was made by means of the most trade and thereafter,
A. The claim for cancellation of two subsequent cases between the same parties is the claim for cancellation of the relevant registration. The cause of the claim, which is the basis for distinguishing the identity, is limited to the invalidation of the relevant cause for registration. Therefore, the cause of the claim for cancellation that could have been asserted before the closing of argument in the previous lawsuit is merely an independent attack and defense method supporting the invalidity of the cause for registration, which is either unfair act by proxy, illegal act or joint representation, or trade invalidation due to false or misleading representation, and thus, it does not constitute a separate cause for claim. Therefore, even in a case where the claim was lost because it was not asserted in the previous lawsuit due to the cause that occurred before the closing of argument in the previous lawsuit as of the date of res judicata, such cause cannot be asserted in the subsequent lawsuit by res judicata effect of the final judgment and the contents of the final
B. In the previous suit, the Defendant filed a claim for cancellation of the registration directly on the ground that the registration of ownership transfer in the name of Nonparty (A) is a provisional registration in the name of Nonparty (A), the cause for which the registration of ownership transfer in the name of the Plaintiff is null and void, and in the subsequent suit, the registration of ownership transfer in the name of Nonparty (A) was duly made by the Defendant for the purpose of securing the claim, or the registration in the name of the Plaintiff was null and void based on the most trade between Nonparty (A) and the Plaintiff. After the closing of argument in the previous suit, the Defendant sought cancellation of the registration by subrogation of Nonparty (A) on the ground that the principal and interest of the secured obligation was fully repaid to Nonparty (A) and the obligation was extinguished by the deposit in the principal and interest of the secured obligation. Therefore,
Article 202 of the Civil Procedure Act
Appellant Kim Su-cheon et al., Counsel for the defendant-appellant
-Appellee Kim-type
Seoul Civil District Court Decision 80Na636, 637 (Counterclaim) decided December 23, 1981
The appeal is dismissed.
The costs of appeal shall be borne by the plaintiff (Counterclaim defendant).
The grounds of appeal by the Plaintiff (Counterclaim Defendant) are examined.
According to the reasoning of the judgment below, since the counterclaim of this case against the plaintiff (Counterclaim plaintiff; hereinafter the plaintiff) by the defendant (Counterclaim defendant; hereinafter the same shall apply) is unlawful in conflict with the res judicata effect of the judgment against the defendant in Seoul High Court 79Na3014 case (the plaintiff in this case), the judgment of the court below is affirmed as follows. In other words, since the defendant in this case becomes the plaintiff in this case and the defendant in this case were to file a lawsuit against the plaintiff in this case as to the provisional registration in the name of the above Kim Jong-dong branch of Seoul District Court 7 Ga-dong and 552, which was completed in relation to the building in this case, the provisional registration in this case, the principal registration in the name of the plaintiff in this case, and the request for the procedure for the cancellation of the ownership transfer registration in this case, and the judgment of the court below against the defendant in this case becomes final and conclusive on that ground, the judgment of the plaintiff in this case is not null and void by the agreement between the plaintiff in this case and the defendant in this case's title of the above provisional registration in this case.
On the other hand, the subject matter of the lawsuit in the case of claim for cancellation of ownership transfer registration between the same party is the right to claim cancellation of the relevant registration, and the cause of the right to claim cancellation registration, which is the basis of identity, is limited to invalidation of the relevant cause for registration. Thus, the cause of the right to claim cancellation, which could have been asserted before the closing of argument in the previous lawsuit, is merely an act of unauthorized representation, an unfair juristic act or a so-called independent attack supporting that the cause of claim is null and void due to false indication, and thus, it does not constitute a separate cause of claim. Thus, even if the cause of claim is lost because it was caused before the closing of argument in the previous lawsuit at the time of res judicata, it cannot be asserted in the subsequent lawsuit by the res judicata effect, and the subject matter of the judgment of the court below is identical to the subject matter of the lawsuit in this case, and as such, the judgment of the court below which rejected the registration under the name of the non-party 1 and the non-party 1's counterclaim for cancellation of ownership transfer registration under the title of the above non-party 1's counterclaim.
Therefore, the appeal is dismissed, and the costs of the appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Kang Jong-young (Presiding Justice)