In cases where another person has already completed the registration of transfer by a final and conclusive judgment, whether another person who has the right to request the registration of transfer can seek cancellation of the registration by subrogation of the former owner

Where a third party has completed the registration of ownership transfer with the final and conclusive judgment on the execution of the procedure for the registration of ownership transfer concerning the real estate against the owner of the real estate without completing the registration of ownership transfer, the former owner of the right to claim the registration of ownership transfer is in conflict with res judicata of the final and conclusive judgment to seek the cancellation of the registration on the ground that the registration of ownership transfer in the name of the third party is null and void by subrogation of the owner of the real estate in order to preserve the right to claim the registration of ownership transfer against the owner of the real estate unless the final and conclusive judgment is null and void or is revoked by a litigation for retrial. Furthermore, it also contradicts res judicata of the final and conclusive judgment to seek the cancellation of another registration of ownership transfer based on

Article 404 of the Civil Act, Articles 202 and 204 of the Civil Procedure Act

Supreme Court Decision 74Da2229 Decided August 19, 1975 (Gong1975, 8627) Supreme Court Decision 86Meu1958 Decided March 24, 1987 (Gong1987, 722) (Gong1988, 579 Decided February 23, 198), Supreme Court Decision 92Da3892 Decided May 22, 1992 (Gong192, 1978)

Plaintiff (Law Firm Dong-dong Law Office, Attorneys Shin Chang-dong et al., Counsel for plaintiff-appellant)

Defendant (Attorney Yoon-soo et al., Counsel for the defendant-appellant)

Seoul District Court Decision 95Na37529 delivered on January 25, 1996

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

We examine the grounds of appeal.

Where a third party has completed the registration of ownership transfer with a final and conclusive judgment to the owner of a real estate without completing the registration of ownership transfer, the former owner of the right to claim the registration of ownership transfer on the ground that the registration of ownership transfer in the name of the third party is null and void by subrogation of the owner of the real estate in order to preserve the right to claim the registration of ownership transfer against the owner of the real estate unless the final and conclusive judgment is null and void or revoked by litigation for retrial, seeking the cancellation of the registration is contrary to the res judicata effect of the above final and conclusive judgment (see, e.g., Supreme Court Decisions 74Da2229, Aug. 19, 1975; 80Da1836, 1837, Dec. 9, 1980; 87Da77777, Feb. 23, 1988); further, it also conflicts with the res judicata effect of the above final and conclusive judgment (see, e.g., Supreme Court Decision 98Da198487, Dec. 16, 1984).

As duly determined by the court below, if the non-party filed a lawsuit against Nowon-gu on August 2, 1989 on the land of this case on the ground of an agreement for transfer on August 2, 1989, and the judgment became final and conclusive upon dismissal of the appeal by Nowon-gu on the land of this case on January 17, 1992, the registration of ownership transfer was completed in the above non-party's name on October 23 of the same year, and the registration of ownership transfer was completed in the defendant's name on the same day, even if the plaintiff has the right to claim ownership transfer registration of this case against Nowon-gu on the ground that the registration of ownership transfer of the above non-party was null and void on the ground that the registration was made on the basis of the above non-party's name on behalf of Nowon-gu and Nowon-gu, and thus, it cannot be permitted as it goes against the res judicata effect of the above final and conclusive judgment.

On the other hand, the remaining arguments of the lawsuit can seek the cancellation of the ownership transfer registration under the name of the defendant as an interested person without the need to subrogate Nowon-gu as the plaintiff, but it is merely an independent opinion and cannot be employed.

Although the reasoning of the court below is somewhat insufficient, the conclusion of the court below that dismissed the plaintiff's claim is just, and it cannot be accepted that there is an error in the rules of evidence or in the misapprehension of legal principles. We do not have merit.

Therefore, the appeal is dismissed and all 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 Lee Don-hee (Presiding Justice)