[토지인도등][공1994.11.1.(979),2789]
Whether exercising the right to demand a purchase of a building is in conflict with res judicata in the final and conclusive judgment of the previous suit, in case where a lawsuit for demanding a removal of the building is instituted after the favorable judgment of the lawsuit for demanding a transfer of land becomes final and conclusive, based on a right to lease the land for the purpose of ownership
The court below determined that the defendant's assertion of a right to request a transfer of land against the defendant prior to the plaintiff's filing of a lawsuit claiming a transfer of land against the defendant prior to the plaintiff's filing of a lawsuit claiming a removal of the building, and the judgment becomes final and conclusive. Res judicata of the final and conclusive judgment in the previous suit is limited to the existence of the right to request a transfer of land against the plaintiff at the time of the date of closing argument in the previous suit, and the right to claim a transfer of land has existed prior to the date of closing argument in the previous suit, and is merely a method of dispute over the above right to request a transfer of land. Thus, although the defendant's assertion of a right to claim a lease is not allowed as it goes against the res judicata of the final and conclusive judgment in the previous suit, the res judicata effect of the final and conclusive judgment in the previous suit is limited to the judgment on the existence of the right to request a transfer of land which is the object of the lawsuit
Article 643 (Article 283) of the Civil Act; Article 202 of the Civil Procedure Act
Plaintiff 1 et al., Counsel for the plaintiff-appellant
Attorney Lee Dong-sung, Counsel for defendant-appellant
Daegu District Court Decision 93Na782 delivered on June 23, 1993
The part of the judgment below against which the removal of building is requested shall be reversed, and that part of the case shall be remanded to the Daegu District Court Panel Division.
The defendant's attorney's grounds of appeal are examined.
According to the reasoning of the judgment below, regarding the defendant's defense that the defendant, from around 1970, leased the land of this case from around 1970 to the plaintiff for the purpose of owning the building of this case, exercising the right to request the purchase of the building of this case, the court below determined that the defendant's assertion of the right to claim the above right to claim the transfer of the land of this case against the defendant prior to the plaintiff's filing of the lawsuit of this case ( Daegu District Court 89Da28720, and the subsequent suit) was affirmed on January 9, 190 and the above judgment became final and conclusive on February 6 of the same year, 190. The res judicata effect of the above final and conclusive judgment is not limited to the existence of the right to claim the transfer of the land against the defendant as of December 12, 1989, which was the date of the closing of the argument, and is merely a method of disputing the above right to claim the transfer of land.
However, since res judicata of the above final and conclusive judgment takes place only in the judgment on the existence of the right to request the delivery of land, which is the subject matter of a prior suit, and it cannot be said that it extends to the existence of the right to lease of the land in this case, the judgment of the court below is erroneous in matters of law by misunderstanding the legal principles as to res judicata and failing to exhaust all necessary deliberations, and it is obvious that such illegality
3. Therefore, without examining the remaining grounds of appeal, the part of the judgment below regarding the claim for removal of building is reversed, and that part of the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices
Justices Cho Jae-young (Presiding Justice)