[토지인도등][공1997.1.1.(25),14]
[1] The objective scope of res judicata of a final and conclusive judgment and judgment in a lawsuit
[2] Where the possessor of the land for which the registration of ownership was made in succession under the name of Gap and Eul sought cancellation of the registration of ownership transfer for Eul, and where Eul filed for the registration of ownership transfer for Eul, but Eul's claim against Eul was dismissed and his claim against Eul was rejected, whether the res judicata effect extends to Eul's existence of ownership (negative)
[1] The res judicata 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, which are the premise thereof, and the judgment in a lawsuit takes place res judicata as to the defects in the requirements of lawsuit established in the judgment.
[2] Where Byung, the possessor of the land for which the registration of ownership preservation and the registration of ownership transfer in Eul's name have been made, sought for the cancellation of Eul's ownership transfer registration on the ground that it was the most trade for Eul, and Eul filed for the registration of ownership transfer pursuant to the agreement against Eul, but Gap's claim against Eul was dismissed and its claim against Eul is dismissed and it is confirmed as is, the res judicata effect of the previous final and conclusive judgment does not affect Eul's own existence or absence of Eul's right, and it does not affect Eul's existence or absence of ownership. Thus, in a lawsuit against Eul such as transfer of land, etc. filed against Byung, Byung may deny Eul's ownership on the ground that Eul's ownership transfer registration becomes invalid as a cause for the most trade.
[1] Article 202 of the Civil Procedure Act / [2] Article 202 of the Civil Procedure Act
[1] Supreme Court Decision 88Da24622 delivered on January 12, 1990 (Gong1990, 451) Supreme Court Decision 93Da5248 delivered on March 24, 1995 (Gong1995Sang, 1712), Supreme Court Decision 93Da43491 delivered on June 13, 1995 (Gong1995Ha, 2386) / [2] Supreme Court Decision 93Da45015 delivered on June 14, 1994 (Gong194Ha, 1946)
Plaintiff (Attorney Choi Jae-soo, Counsel for the plaintiff-appellant)
Defendant 1 and one other (Attorney Ba-young, Counsel for the defendant-appellant)
Daegu District Court Decision 95Na15245 delivered on June 21, 1996
The appeal is dismissed. The costs of appeal are assessed against the plaintiff.
The supplemental appellate brief submitted after the lapse of the grounds of appeal and the period are deemed to supplement the grounds of appeal.
1. The res judicata 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, which are the premise thereof (see, e.g., Supreme Court Decisions 93Da52488, Mar. 24, 1995; 93Da43491, Jun. 13, 1995); and the judgment of a court has res judicata effect as to the defects in the requirements for a lawsuit established in the judgment.
According to the facts duly established by the court below and the records, the registration of ownership transfer in the name of the non-party was completed on March 19, 191, and at the same time the registration of ownership transfer was made in the name of the plaintiff. Defendant 1 filed a claim against the non-party for the registration of ownership transfer due to an agreement made on March 29, 1990 with the non-party with respect to the part of the land before the division of this case as to the same defendant among the land before the division of this case as to the non-party's possession, and at the same time, the non-party filed a claim for the registration of ownership transfer cancellation due to the most sale, but the claim against the above non-party was dismissed, and the lawsuit against the plaintiff was filed against the plaintiff, but the appeal was dismissed in the appellate court (Seoul District Court 92Na5186 delivered on March 19, 191). Accordingly, the res judicata effect of the judgment of the first instance as to the non-party's claim for ownership transfer registration and the plaintiff's lack of ownership.
In the same purport, the court below is just in rejecting the Plaintiff’s assertion that Defendant 1’s ownership on the land as indicated in the judgment by res judicata of the above final judgment cannot be denied, and there is no error in the misapprehension of legal principles as to res judicata, such as the theory of lawsuit, etc.
2. Examining the reasoning of the judgment below in light of the records, the registration of transfer of ownership in the name of the plaintiff as to the land owned by the defendant 1 is null and void due to the most trade, and the land in the judgment of the plaintiff's assertion that the defendant 2 occupies is only used as the road, and it is difficult to hold that the defendant 2 occupies it as the road, and there is no error of law such as misunderstanding of legal principles or misunderstanding of facts, such as the theory
Therefore, we cannot accept all the arguments of the court below since they merely criticize the selection of evidence and the recognition of facts which are the exclusive authority of the court below.
3. Therefore, the appeal is dismissed, and all costs of 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 Ahn Yong-sik (Presiding Justice)