Whether res judicata effect of a final and conclusive judgment of the execution of the procedure for ownership transfer registration, which a double buyer of real estate acquired against the seller, also affects the initial buyer.

Where a purchaser of a real estate institutes a lawsuit against a seller and has completed the registration of ownership transfer with a final and conclusive judgment on the execution of the procedures for the registration of ownership transfer on such real estate, the buyer cannot seek the cancellation of the registration of ownership transfer in the name of a third party by subrogation of the seller in order to preserve the seller's right to claim the registration of ownership transfer before the final and conclusive judgment is null and void or revoked by litigation for retrial, but this does not purport to the effect that, in the event that the buyer exercises the seller's right to claim the res judicata of the final and conclusive judgment, it does not constitute a violation of res judicata, and that the buyer does not assert any assertion contrary to the final and conclusive judgment

Article 404 of the Civil Act, Article 204 of the Civil Procedure Act

Supreme Court Decision 74Da2229 Decided August 19, 1975, 80Da1836,1837 Decided December 9, 1982

Plaintiff

Kang Chang-ho

Seoul High Court Decision 86Na2199 delivered on February 9, 1987

The appeal is dismissed.

The costs of appeal are assessed against the plaintiff.

As to the Plaintiff’s ground of appeal:

1. The court below originally held that the land in this case was owned by the deceased non-party 1, but the land in this case was purchased and sold to the deceased non-party 2 and sold to the deceased non-party 1, and the plaintiff died while he did not complete each registration of ownership transfer, the plaintiff, in collusion with the deceased non-party 2, one of his inheritors, knowing that the deceased non-party 1's inheritors had a duty to conduct the registration of ownership transfer, disposed of the land in the name of the plaintiff, distributed profits, and made a false sales contract by suggesting that he would dispose of the land and distribute profits, and the judgment became final and conclusive upon receiving a favorable judgment against the deceased non-party 1's heir by filing a lawsuit claiming the performance of the procedure for the registration of ownership transfer, the fact that the registration of ownership transfer was made in the name of the plaintiff and the above transfer was caused by the breach of trust of the plaintiff and the non-party 2, and determined that the judgment became final and conclusive after being convicted of the judgment was made by the plaintiff's active participation in the breach of trust.

2. Where a purchaser of a real estate institutes a lawsuit against the seller and has completed the registration of ownership transfer with the final and conclusive judgment to execute the procedure for the registration of ownership transfer of the real estate, the buyer may not seek the cancellation of the registration of ownership transfer in the name of a third party by subrogation of the seller in order to preserve the seller's right to claim the registration of ownership transfer in the name of the third party until the final and conclusive judgment is null and void or revoked by litigation for retrial (see, e.g., Supreme Court Decision 74Da2229, Aug. 19, 1975; Supreme Court Decision 80Da1836, 1837, Dec. 9, 1980; Supreme Court Decision 80Da1836, 1837, Dec. 9, 1980). However, the purport of this is that if the buyer exercises the seller's right to the effect of res judicata of the final and conclusive judgment, it does not constitute a violation of the contents

Therefore, it does not conflict with res judicata effect even if the defendant's assertion is contrary to the defendant's defense that does not affect res judicata effect of a final and conclusive judgment as the third party's heir, who is the party to the execution procedure of the above final and conclusive judgment, and the third party's position does not exercise the right of the deceased non-party 1's heir. Therefore, it is just to accept the defendant's defense that does not affect res judicata effect of a final and conclusive judgment and determine that the registration

Therefore, the plaintiff's exercise of ownership is restricted by the theory of lawsuit, although the plaintiff has the name of ownership transfer registration, but it is not an illegal conclusion that is derived from the provisions of Articles 202 and 204 of the Civil Procedure Act that limits the scope of res judicata effect of the final and conclusive judgment, which is contrary to the legal principles of ownership.

The issue is groundless.

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.

Justices Yoon In-bok (Presiding Justice)