가등기말소
1. The defendant's appeal is dismissed.
2. The costs of appeal shall be borne by the Defendant.
Purport of claim and appeal
1..
1. The reasoning of the judgment of the court of first instance that accepted the judgment is consistent with the reasoning of the judgment of the court of first instance, except for the dismissal of the fourth to eighteen lines (Article 7(2) of the judgment of the court of first instance) as set forth in the main sentence of Article 420 of the Civil Procedure Act.
2. Determination as to whether the appeal contravenes res judicata
A. The summary of the Defendant’s assertion is the same as the previous suit of this case in which the dismissal judgment became final and conclusive, and the Plaintiff constitutes a successor after the closing of argument in the previous suit of this case.
The prior suit of this case, which became final and conclusive in the judgment of dismissal, sought the cancellation of provisional registration of the defendant as the exclusion of disturbance by putting the claim of right holders, such as the plaintiff C, in accordance with the real right right claim of the right holders, which is the plaintiff, and the subject matter of lawsuit of this case is identical since the plaintiff seeks the cancellation of provisional registration as the exclusion of disturbance by putting the claim based on the right to collateral security acquired by the plaintiff
On the other hand, the Plaintiff should be deemed as a successor to the right to collateral security acquired as a result of the establishment succession of a part of ownership from C, etc. after the judgment of the previous suit became final and conclusive.
Therefore, the instant lawsuit shall be dismissed or dismissed in conflict with the res judicata of the final and conclusive judgment in the previous suit of this case.
B. The subject matter of the claim for the exclusion of disturbance based on the ownership of the land is not the ownership of the land, but the claim for the exclusion of disturbance, which is the ownership of the real right. Therefore, res judicata of the dismissal judgment which became final and conclusive in the lawsuit in question only affects the existence of the claim for the exclusion of disturbance, and it does not extend to the existence of the right
Therefore, the existence of land ownership of a third party who has succeeded to ownership by purchasing land from the losing land owner and completing the registration of ownership transfer after the closure of fact-finding proceedings for the claim for removal of disturbance.