B. Whether a lawsuit seeking confirmation of ownership based on the premise that the father-owned real estate was donated and the lawsuit seeking confirmation of ownership based on the premise that the father was inherited due to the death of his father constitutes “the same lawsuit” under Article 240(2) of the Civil Procedure Act (negative)

B. A lawsuit seeking confirmation of ownership on the premise that the father-owned real estate was donated and the lawsuit seeking confirmation of ownership on the premise that the father was succeeded to the ownership on the premise that the father was deceased cannot be seen as “the same lawsuit” under Article 240(2) of the Civil Procedure Act.

The case shall be remanded to Seoul Civil District Court Panel Division.

1. On October 19, 1987, the lower court acknowledged that the Plaintiff filed a lawsuit against the Defendant seeking confirmation of the ownership of the real estate in this case against the Suwon District Court (87Gadan2973) but the judgment dismissing the Plaintiff’s claim on February 10, 1988 and became final and conclusive around July 1988, the lower court dismissed the Plaintiff’s claim on the ground that the instant claim seeking confirmation of the ownership of the Plaintiff’s 21/6 shares in the instant real estate conflict with the res judicata effect of the said final and conclusive judgment.

2. However, according to each of the evidence Nos. 3 (Appeal) and Nos. 4 (Withdrawal of Lawsuit) that the court below rejected, the plaintiff filed an appeal against the above judgment and submitted to the court of appeal a written withdrawal of the lawsuit that the plaintiff completely withdraws the lawsuit on July 4, 1988 that the case was pending in the appellate court (the Suwon District Court 88Na1421). Thus, the withdrawal of the lawsuit can only be made up to the final and conclusive judgment (Article 239(1) of the Civil Procedure Act). If it is acknowledged that there are special circumstances to deem that the withdrawal of the lawsuit in writing by the plaintiff is not effective, it is not known that the lawsuit has not been continued from the beginning (Article 240(1) of the Civil Procedure Act). Thus, it is difficult to view that the judgment of the court of first instance became final and conclusive on July 7, 198, as stated in evidence No. 5 (Evidence of Judgment).

Therefore, the court below should have deliberated ex officio on whether the case was terminated by the withdrawal of a lawsuit made by the plaintiff in writing (Evidence No. 4), not as stated in the evidence No. 5, and if the judgment of the court of first instance became final and conclusive, it should have deliberated in a more detailed manner on how the court of first instance became final and conclusive. However, without any determination on the evidence No. 4, it should be recognized that the judgment of the court of first instance became final and conclusive by only the statement of evidence No. 5, without making any determination on the evidence No. 5. Thus, the court below should not be deemed to have erred by misapprehending the legal principles on the matters to be examined ex officio, or by failing to properly conduct a trial.

3. Since the withdrawal of a lawsuit by the Plaintiff in writing cannot be deemed to have become final and conclusive since the judgment of the first instance became final and conclusive, even if the claim in this case is not determined to have conflict with res judicata of the final and conclusive judgment, the Plaintiff is a person who withdraws the lawsuit after the final and conclusive judgment on the merits was rendered, and thus, cannot bring the same lawsuit again in accordance with Article 240(2

However, according to the evidence No. 2 of the court below employed by the plaintiff in the above lawsuit, since the real estate of this case, which was not registered as preservation of ownership, was originally owned by the non-party whose father was his own father, and he donated it to himself on October 13, 1970, he sought confirmation against the defendant by asserting that the real estate of this case was its own own possession. The above court did not determine whether the real estate of this case was originally owned by the non-party, and it is obvious that the plaintiff did not receive the registration of transfer of ownership due to the above donation under his own name, as long as it was evident that the plaintiff did not receive the registration of transfer of ownership due to the above donation, it cannot be deemed that the real estate of this case was owned by the plaintiff. In the lawsuit of this case, since the share of 216 percent of the real estate of this case was inherited by the non-party deceased who was the owner of the real estate of this case, his ownership was proved to have been owned by the defendant, it cannot be deemed to be "the previous lawsuit of this case and the plaintiff."

Thus, as seen in the above 2.2. paragraph of the court below committed by the court below, the illegality has influenced the judgment.

4. Therefore, the judgment of the court below is reversed, and 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 Choi Jae-ho (Presiding Justice)