[부당이득금반환][집32(4)민,25;공1984.11.15.(740)1716]
Whether a third party who purchased land from the losing land owner and completed the registration of ownership transfer after the closure of fact-finding proceedings constitutes a successor after the conclusion of final and conclusive judgment (negative)
Since the subject matter of a land transfer lawsuit based on a real right claim based on the land ownership is not the land ownership but the right to request the delivery of the land which is the real right claim, res judicata of the final and conclusive judgment dismissed in the lawsuit is limited to the existence of the right to request the delivery of the land itself, and it does not extend to the existence of the land ownership which is not the subject matter of the lawsuit. Therefore, the existence of the land ownership of a third party who has succeeded to the ownership by purchasing the land from the losing land owner and completing the registration of ownership transfer from the losing land owner after the conclusion of the fact-finding hearing of the land transfer lawsuit, shall not affect res judicata effect of the above final and conclusive judgment. In this case, the right to request the delivery of the land, which is the real right claim to which the third party becomes the subject matter of the above third party, takes place as the general effect of the land ownership which is legally succeeded, and it cannot be said that the third party
Articles 202 and 204 of the Civil Procedure Act
[Judgment of the court below]
Defendant Kim Tae-tae, Counsel for the defendant-appellant
Seoul High Court Decision 83Na2183 delivered on December 28, 1983
The appeal is dismissed.
The costs of appeal are assessed against the defendant.
The grounds of appeal are examined.
(1) Since the subject matter of a claim based on the land ownership is not the land ownership but the right to request the delivery of the above land, which is the real right right, the final and conclusive judgment dismissed in the lawsuit itself, it shall not extend to the existence or absence of the right to request the delivery of the land. Therefore, the res judicata of the above final and conclusive judgment shall not extend to the existence or absence of the land ownership which is not the subject matter of the lawsuit. In this case, the right to request the delivery of the land, which is the real right to be established by the third party, takes place as the general effect of the above third party's right to claim the delivery of the above land, and it cannot be said that the above third party's right to claim the delivery of the land, which is the subject matter of the lawsuit for the delivery of the above land, takes place by succession of the right to claim the above land ownership of the above third party's right to claim the above third party's right to claim the delivery of the land, which is the subject matter of the lawsuit for the delivery of the above land, and the above third party's right to claim the ownership transfer of the above land cannot be established.
When the court below decided that the plaintiff's claim for objection does not conflict with the res judicata of the above final judgment, the contents of the judgment do not seem to be sufficient in its expression, but it cannot be viewed as a judgment with the above purport in light of the context before and after it, and the above mistake of the court below did not affect the conclusion of the judgment that the plaintiff's claim for objection does not conflict with the res judicata of the above final judgment, and therefore it is therefore groundless.
(2) According to the reasoning of the judgment below, the court below held that the land of this case is the farmland owned by Japan at the time of the sea disaster and it cannot be acknowledged that the defendant's assertion was made at the time of the Farmland Reform Act. Thus, in light of the records, the court below was just in examining the process of cooking evidence conducted by the court below in taking such measures, and there is no violation of the rules of evidence against the rules of evidence, such as the theory of lawsuit, nor there is no error of law of lack of reason that affected the judgment
(3) Therefore, the appeal is dismissed, and the 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 Kang Jin-young (Presiding Justice)