EBD Co., Ltd. (Attorneys Lee Sang-ro et al., Counsel for the plaintiff-appellant)

Defendant 1 and two others (Attorney Park Sung-ho, Counsel for the defendant-appellant)

April 10, 2013

Ulsan District Court Decision 2011Gadan29641 Decided November 14, 2012

1. Revocation of a judgment of the first instance;

2. The plaintiff's claims against the defendants are all dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

The Plaintiff

A. Of 1136.54 square meters on the 9th floor of a building indicated in the attached Table “real estate indication”

(1) Defendant 1’s 6.4 square meters on board that connects each point of the attached Form No. 2, 3, 10, 11, and 2, in sequence, with the indication of the attached Form No. 1;

Shebly Defendant 2, in sequence, connects each point of 3, 4, 9, 10, and 3 of the same drawings to the section 6.4 square meters in the ship;

Defendant 3 delivers each part of 6.42 m2 square meters in order to connect each point of 5, 6, 7, 8, and 5 of the same drawings;

B. The Defendants shall pay 904,00 won per month from February 1, 2011 to January 30, 2012, and 910,000 won per month from the following day to the completion date of delivery.

2. Purport of appeal

The same shall apply to the order.

1. Basic facts

(a) The new construction of buildings and their registration relations;

(i) D&A Co., Ltd. (the former gender of the K&A Co., Ltd. was changed to its trade name; hereinafter “D&A”) newly constructed “○○○○○○○ 101 unit,” which is a sales and business facility of the five underground floors, the 14th floor above the ground, the 3th floor above the 3th floor above the 5th floor above the 10th floor above the 10th floor above the 10th floor below the 201th unit below the 2006 unit upon the commission of Nonparty 1, etc. (the d&A had no 3th floor on January 11, 2010). The registration of the use was completed on February 13, 2006 upon the request of Nonparty 1, etc., the provisional attachment obligee (the d&A had no d&A obtained approval of the use on the 3rd floor above the 3rd floor below the 2010th floor).

Luxembourg newly constructed “○○○○○○○ 102 Dong,” a sales facility (parking lot) on the instant land, separate from the above building on the instant land, and completed the extension registration by changing the purpose of use into a sales facility on January 11, 2010, after completing registration of ownership preservation on February 12, 2007 (a partial extension of the area).

【○○○○○○○○○” building was originally registered as an aggregate building on November 13, 2009, and was combined with a general building on November 13, 2009. Under the registry, “○○○○○○○○○○○○ 101 Dong” (hereinafter “instant building”) is indicated as “△△△△△△△△△△△△△△△△△△○ 101 Dong ( Main Dong)” (hereinafter “instant building”) and “○○ 102 Dong” as “△△△△△△△△△△△△△△ 102 Dong

B. Conclusion of sales contract and the defendants' possession status etc.

(1) On February 3, 2003, D&A entered into a sales contract with Defendant 1 for the purchase price of KRW 158.4 square meters (excluding value-added tax; hereinafter the same shall apply) with regard to the part 6.4 square meters (hereinafter “instant 905 square meters”) connected with Defendant 1 in sequence with each point of 2,3,10,11, and 2, and entered into a sales contract with Defendant 1 for the exclusive use of KRW 6.40 square meters, the common area of KRW 28.65 square meters, the common area of KRW 4.5 square meters, and the site shares of KRW 4.54 square meters; ② on December 16, 2002, the sales contract for the sale of KRW 3,4,9,100,000 and KRW 6.44 square meters with the same drawings, and the sales contract for the sale of KRW 6.5,500,000,000,000.

B. On February 3, 2003, Nonparty 2 transferred the status of the buyer in the sales contract of this case to Defendant 2, namely, the sales contract of this case 904, and D&A consented thereto (hereinafter “instant commercial building”).

•Defendant 1 and 2 received the shopping district of this case without paying the balance specified in the sales contract with D&A (Defendant 1, 2, and Defendant 3, including value added tax, KRW 34,056,00). Defendant 1 and 2 integrated the instant 904 and 905, and used it as pop-up containers and drinking water, and Defendant 3 leased the instant 902 to a third party.

(c) Transfer of ownership in the name of Korea Asset Trust Co., Ltd.;

(1) The L&A borrowed KRW 00 billion as land purchase fund and construction cost, and completed the construction, but the sale of the building was not proper, and most buyers did not pay part payments properly and filed a lawsuit seeking cancellation of the sale in lots, thereby experiencing considerable financial difficulties. Accordingly, L&A decided to cancel all the sale in lots and set up a comprehensive plan to re-scheduled commercial buildings, and the adjustment was concluded to cancel the sale in lots with most buyers during the process of litigation.

In the process of D&A, L&A borrowed more additional money and returned it to the buyer. In order to secure their claims, the creditor-based limited liability company and Daewoo Motor Vehicle Sales Co., Ltd, the contractor, required to trust and manage the entire building and land in trust to the Korea Asset Trust.

Article 28(1) of the Civil Act provides that "No person shall register the ownership of the instant building including the instant commercial building on April 15, 2005," and "No person shall register the ownership of the instant building on August 17, 2005," and "No person shall register the ownership of the instant building on March 22, 2006," and "No person shall register the ownership of the instant building on April 17, 2005," and "No person shall register the ownership of the instant building on March 22, 2006, to the Korean Asset Trust Co., Ltd. (hereinafter referred to as "Korean Asset Trust").

In addition, the trust deed of the D&A and the Korean Asset Trust between the D&A had no content about the disposal of the portion for which ownership has not yet been transferred, even though D&A sold to the buyer before the conclusion of the trust contract among the instant buildings, including the instant commercial buildings, to the buyer.

D. Progress of the previous lawsuit

(1) On June 27, 2007, the Korean Asset Trust filed a lawsuit against the Defendants for delivery of the instant commercial building on the grounds that “(i) it acquired the ownership of the instant commercial building, and (ii) even if it succeeded to the status of the seller, it is impossible to perform the Defendants’ obligation to pay the remainder of the purchase price or to register ownership transfer with D&A, and thus, the sales contract with the Defendants was lawfully rescinded.”

On April 4, 2008, this Court dismissed all Plaintiff (Korean Asset Trust)’s claim on the ground that “The ownership transfer agreement with respect to the instant commercial building, among the trust contracts between D&A and Korean Asset Trust, was actively reflected in the seller’s act of breach of trust, and constitutes an anti-social legal act, and thus null and void. The ownership transfer registration in the name of the Plaintiff (Korean Asset Trust) that was made based on an invalid agreement is null and void. In addition, the sales contract with the Defendants cannot be deemed to have been lawfully rescinded.” The above judgment became final and conclusive on the 26th of the same month (hereinafter “final and conclusive judgment”).

B. On June 4, 2008, the Defendants filed a lawsuit seeking the cancellation of the respective transfer registration on the commercial buildings of this case on the basis of the creditor's subrogation right as to the Korean asset trust with the preservation bond.

On June 17, 2009, the court rendered a judgment in favor of the plaintiffs (the defendants of this case) that "the trust agreement between L&A and Korean asset trust constitutes an anti-social legal act, i.e., double trade, and thus becomes null and void. Thus, the Korean asset trust carries out the procedure for cancellation registration of each ownership transfer registration, which was completed with respect to the instant commercial buildings and land (the defendant's share) and the procedure for cancellation of each ownership transfer registration with respect to the instant commercial buildings and land (the defendant of this case), and the plaintiffs (the defendants of this case) receive each balance from the plaintiffs (the defendants of this case) at the same time upon receipt of the plaintiffs (the defendants of this case)." The above judgment became final and conclusive on July 15 of the same year (hereinafter "final and conclusive judgment").

(e) Registration of ownership transfer from the Korea Asset Trust in the name of the plaintiff;

(1) On November 2, 2010, when the Defendants did not execute the instant final judgment, D&A decided to sell the instant land, buildings, etc. to a third party. Accordingly, the Korea Asset Trust issued a public notice of the public auction of real estate held in trust around November 2, 2010.

B. The Plaintiff (hereinafter “Plaintiff”) purchased the instant land, buildings, etc. on November 23, 2010 in the public sale procedure and completed the registration of ownership transfer in its name on January 31, 201.

[Ground of recognition] Facts without dispute, Gap 1, 2, 3, 4, Eul 1 and 2-1, 2, Eul 3-1 through 5, Eul 4, 5, 6, and 8-1, 2, and Eul 3-1 through 5, 4, 6, and 8, part of the witness of the first instance court, non-party 3 and 4, inquiry results on the Korean Asset Trust Co., Ltd. of the first instance court, and the purport of the whole pleadings

2. Summary of the parties' arguments

A. The plaintiff

The Plaintiff purchased the instant building, etc. from the Korea Asset Trust and completed the registration of ownership transfer on January 31, 201. The Defendants, the possessor, transferred the instant commercial building to the Plaintiff, respectively, and seek a return of unjust enrichment equivalent to the monthly rent from February 1, 2011 to the completion date of delivery of each of the instant commercial buildings from February 1, 2011, the following day of the Plaintiff’s acquisition of ownership.

B. Defendant

(1) The claim in this case filed by the Plaintiff who acquired the ownership of the commercial building in this case from the Korean Asset Trust, the losing party against the final and conclusive judgment, and the lawsuit claiming the cancellation of ownership, is in conflict with the res judicata effect of the final and conclusive judgment.

Sheb even if not so, inasmuch as the trust deed between D&A and the Korean asset trust violates Article 103 of the Civil Act and the cancellation of the ownership transfer registration of the instant commercial building on the ground that it is null and void, the Plaintiff, the transferee of the Korean asset trust, is not entitled to acquire the ownership of the instant commercial building on the ground that the trust deed violates Article 103 of the Civil Act.

3. Determination

A. As to whether the claim in this case is contrary to res judicata

(1) In order for a successor to be subject to res judicata to be denied, objective res judicata has to be invalidated because the subject matter of a lawsuit in the previous lawsuit and the subject matter of a subsequent lawsuit against the successor are identical or contradictory, or a prior relationship is established.

First, we examine whether the claim of this case against the Defendants is subject to res judicata of the final and conclusive judgment, which is the exercise of the Plaintiff’s right of claim based on ownership.

Since the subject matter of an extradition lawsuit based on ownership is not the ownership itself, but the claim for extradition, which is a real right, the right to claim the ownership, res judicata of the dismissed final judgment does not affect the existence of the right to request the delivery of a building, and it does not affect the existence of ownership which is not the subject matter of a lawsuit. As to the existence of ownership of a third party who succeeded to ownership by purchasing a building and completing the registration of ownership transfer from the owner who has lost after the closure of the fact-finding proceedings in the extradition lawsuit, the res judicata effect of the above final judgment does not extend to the existence of ownership of a third party who has succeeded to ownership. Furthermore, the right to request the delivery based on a real right held by a third party arises as the general effect of the ownership legally succeeded ownership, and cannot be said to have come into existence by succeeding the right to claim the delivery of the person who has lost the subject matter of a lawsuit in the previous lawsuit, such third party shall not be deemed to fall under the successor after the closure of the arguments in the final judgment (see, e.g., Supreme Court Decisions 84Da1488.

B. Next, I examine whether the instant claim filed by the Plaintiff based on ownership is subject to res judicata effect of the final and conclusive judgment on the ground that she acquired the instant commercial building from a Korean asset trust, which bears the duty to register cancellation against D&A.

② A final and conclusive judgment is a lawsuit filed by the Defendants for the registration of cancellation of ownership transfer against Korean assets trust on behalf of D&A, and res judicata effect of the final and conclusive judgment extends only to the existence of a claim for cancellation of ownership registration, which was a subject matter of lawsuit. Since the claim of this case, which is a subsequent suit, is different from that of a claim for the delivery of a building, it cannot be deemed that res judicata effect of the final and conclusive judgment extends to the instant case (see Supreme Court en banc Decision 78Da58, Feb. 13, 1979). This part

B. As to whether the Plaintiff acquired ownership

Finally, it is examined whether the Plaintiff acquired the ownership of the commercial building of this case as the cause of the claim.

Article 218(1) of the Civil Procedure Act provides, “The final and conclusive judgment shall have effect on the parties, successors subsequent to the closure of pleadings (in the case of a judgment without holding any pleadings, successors subsequent to the pronouncement of the judgment), or persons possessing the object of claims on their behalf.” This may be interpreted to mean, in principle, that the res judicata of a final and conclusive judgment shall have effect on the third party in a special relationship only with the parties.

② On January 31, 201, the day after the closure of the fact-finding proceedings in a final and conclusive judgment, the Plaintiff completed the registration of ownership transfer from the Korea Asset Trust with respect to the instant commercial buildings. As such, we examine whether the Plaintiff can acquire the ownership of the instant commercial buildings from the Korea Asset Trust.

(2) The Defendants filed a lawsuit against D&A and the Korea Asset Trust (hereinafter “Korea Asset Trust”) to the effect that “The registration of cancellation of ownership transfer of the instant commercial building is null and void in violation of Article 103 of the Civil Act.” Since D&A participated in the said litigation, its final and conclusive judgment has its effect on D&A as it is difficult for the Defendants to file a claim for exclusion from infringement of real rights based on ownership, ② Although D&A’s vicarious exercise of ownership registration was not registered, D&A’s ownership transfer registration of the instant commercial building was revoked on November 23, 2009 (see, e.g., Supreme Court en banc Decision 9Da197, Nov. 23, 2009). 2)

(2) Therefore, the Plaintiff cannot acquire the ownership of the instant commercial building, which was transferred from the Korea Asset Trust that bears the duty to cancel the ownership transfer registration in accordance with the final judgment.

C. Sub-committee

As long as the Plaintiff did not acquire the ownership of the commercial building of this case, the claim of this case seeking unjust enrichment against the Defendants on the ground that the Plaintiff is the owner of the commercial building of this case is without merit.

4. Conclusion

The plaintiff's claim of this case is dismissed as it is without merit, and the judgment of the court of first instance is unfair with different conclusions. Thus, the appeal by the defendants is accepted, and the judgment of the court of first instance is revoked, and all of the plaintiff's claims against the defendants are dismissed. It is so decided

[Attachment]

Judge Seo Chuncheon (Presiding Judge)