[소유권이전등기말소][집25(2)민,200;공1977.9.15.(568) 10241]
Article 204 of the Civil Procedure Act provides for the burden of proof of succession before the closing of argument.
Article 204(2) of the Civil Procedure Act provides that the person who asserts the succession prior to the closing of argument shall bear the burden of proof. Thus, insofar as the transfer contract on the land which caused the subrogation prior to the closing of argument is recognized, it constitutes a case of succession of the right prior to the closing of argument, as long as the transfer contract on the land which caused the subrogation
Article 204 of the Civil Lawsuit Act
[Judgment of the court below]
Defendant 1 and one other, Counsel for the defendant Kim Jong-hun, Counsel for the defendant-appellant
Seoul High Court Decision 75Na1294 delivered on December 10, 1976
The judgment below is reversed and the case is remanded to Seoul High Court.
The grounds of appeal are examined.
Article 204(1) of the Civil Procedure Act provides that a final and conclusive judgment shall be effective as against a successor after the closing of argument. Paragraph (2) of the same Article provides that if a party fails to make a statement of succession at the time of closing of argument, it shall be presumed that he/she succeeded after the closing of argument, the res judicata of the judgment shall affect a successor after the closing of argument, while it shall be presumed that he/she has the burden of proof against a successor who asserts succession before the closing of argument, even if there is no statement by the party in fact prior to the closing of argument. Therefore, if the fact of succession prior to the closing of argument is proved
However, the judgment of the court below can be accepted that the transfer contract concluded between the plaintiff et al. and the above non-party regarding each real estate of June 25, 1971, which is the transfer of real estate between the non-party (in subrogation of the plaintiff on behalf of the plaintiff in the exercise of the right of subrogation of the creditor) and the defendant 1, had been terminated. However, in accordance with the purport of the pleading, the parties did not state the fact that the above transfer contract was terminated by the time of the closing of argument in the civil litigation case, so the court below
As long as the court below acknowledged the fact that a transfer contract for the land of this case between the plaintiff and the non-party was cancelled before the closing of argument in the previous subrogation lawsuit, it naturally succeeds to the right. Thus, since this constitutes a case of succession of the right prior to the closing of argument, res judicata of the final judgment in the previous subrogation lawsuit does not affect the plaintiff, who is the successor prior to the closing of argument. Therefore, the judgment of the court below is erroneous in the misapprehension of legal principles as to the personnel (major scope) of res judicata, and it is obvious that the objection affected the conclusion of the judgment, and therefore, the argument that discussed this point is without merit, the judgment of the court below is reversed.
Therefore, it is so decided as per Disposition by the assent of all participating Justices.
Justices Jeong Tae-won (Presiding Justice)