2019Da261381 Cancellation of provisional registration

Plaintiff

Law Firm Sejong, Attorneys Kim Jong-ok et al., Counsel for the plaintiff-appellant

NexEX Construction Co., Ltd.

Law Firm LLC, Attorneys Kim Tae-tae et al., Counsel for the plaintiff-appellant-appellant-appellee-appellant

Seoul High Court Decision 2019Na2005909 Decided July 19, 2019

May 14, 2020

The appeal shall be dismissed.

The costs of appeal shall be borne by the defendant.

The grounds for appeal are determined.

1. According to the reasoning of the original judgment and the record, the following facts are revealed.

A. On January 15, 2009, Nonparty 1 acting for Nonparty 2, Nonparty 3, and Nonparty 4 (hereinafter referred to as “Nonindicted 2, etc.”). On the part of Defendant B, Nonparty 2, etc. from among each real estate listed in No. 1-7 No. 1-7 of the attached list of the lower judgment, the contractor entered into a pre-sale agreement with Nonparty 2, etc. as the Defendant, and the contractor entered into a pre-sale agreement with Nonparty 2, etc. as the Defendant. As to the real estate listed in No. 8 of the attached list No. 8 as owned by Nonparty 2, the contractor entered into a pre-sale agreement with Nonparty 2, and the pre-contracted as the Defendant (hereinafter referred to as “the pre-sale agreement”).

B. On the ground of the instant pre-sale, the Defendant filed a lawsuit seeking the cancellation of the instant provisional registration on January 17, 201, on the ground of the instant pre-sale, on the ground of the instant pre-sale agreement, on the part of Nonparty 2, etc. among each real estate listed in No. 1-7 of the attached list of the lower judgment, the provisional registration of the right to claim the transfer of shares was completed, and on the real estate listed in No. 8 of the same list, the right to claim the transfer of ownership was completed (hereinafter referred to as the “instant provisional registration”). Nonparty 2, etc. filed a lawsuit seeking the cancellation of the instant provisional registration on the basis of ownership at will against the Defendant on January 17, 2011 without authority. The court dismissed the said claim on the ground that Nonparty 1, “I, on May 25, 2012, completed the instant provisional registration in accordance with the granting of the right to dispose by Nonparty 2, etc., and the said judgment became final and conclusive on June 14, 2012 (hereinafter referred to as “instant”).

D. On May 23, 2013, Nonparty 2, etc. filed a lawsuit against the Defendant for the cancellation of the provisional registration of this case on the basis of ownership by asserting that “the provisional registration of this case was made by Nonparty 1’s forged trade reservation, and thus null and void or the instant reservation constitutes both representation and null and void.” The appellate court dismissed the said claim on the ground that the instant reservation on June 25, 2015 falls under both representation as stipulated in Article 124 of the Civil Act, and the said judgment became final and conclusive on November 3, 2015, on the ground that the instant reservation on June 25, 2015 falls under the res judicata effect of the judgment of the previous lawsuit of this case, and thus, it cannot seek the cancellation of the provisional registration of this case pursuant to the res judicata effect.

E. On November 14, 2017, the Plaintiff filed the instant lawsuit seeking the cancellation of the provisional registration against the Defendant after completing the registration of establishment of a neighboring establishment on the ground that the instant provisional registration was completed on November 14, 2017.

2. As to the assertion of legal scenarios as to res judicata

A. Res judicata of a final and conclusive judgment refers to the binding force at which the parties cannot make any assertion that conflict with it and the court cannot make a judgment that conflict with it when the issue becomes an issue in this lawsuit, which is identical with the legal judgment contained in the text of the final and conclusive judgment (see Supreme Court Decision 86Meu2756, Jun. 9, 1987). It does not have the substantive legal effect that changes the substantive legal relationship in accordance with the content of the final and conclusive judgment.

The subject matter of a lawsuit seeking cancellation of a provisional registration based on a real right claim based on land ownership is a claim for cancellation of a provisional registration. As such, res judicata of a final and conclusive judgment dismissed in the lawsuit is limited to the absence of a claim for cancellation of a provisional registration itself, and does not affect the existence of land ownership which is not the subject matter of a lawsuit. Furthermore, a lawsuit filed by the landowner due to the above dismissed final

The content of the right of retention or the substantive content of a real right claim based on land ownership is not changed or extinguished.

The third party who acquired the right to collateral security from the landowner after the conclusion of pleadings at the fact-finding court in a lawsuit seeking cancellation of the above provisional registration has the right to claim the right to collateral security as a general effect of the right to collateral security lawfully acquired, and does not have the right to claim cancellation of the provisional registration against the losing party, which is the subject matter of the lawsuit seeking cancellation of the above provisional registration, and it does not have the right to claim the right to claim cancellation of the provisional registration on the ground of a claim based on the right to claim based on the right to collateral security duly acquired by himself. Thus, the third party does not

Therefore, in a lawsuit seeking cancellation of provisional registration based on land ownership, res judicata of the final and conclusive judgment dismissed does not extend to the case where a third party who acquired the right to collateral security from the land owner requests cancellation of the same provisional registration based on the right to collateral security after the conclusion of pleadings in the lawsuit

B. The court below rejected the defendant's assertion that "for the following reasons, the plaintiff constitutes a successor after the conclusion of argument that has res judicata effect of the judgment in the previous suit of this case." (1) The plaintiff lawfully acquired the right to collateral security concerning the real estate of this case from the non-party 2, etc. after the conclusion of the fact-finding hearing in the previous suit of this case. (2) The plaintiff's right to claim cancellation of the provisional registration of this case based on the plaintiff's right to collateral security, which is the subject matter of the lawsuit of this case, is a general effect of the right to collateral security acquired by the plaintiff, and it does not become a successor after succession to the right to claim cancellation of provisional registration against the non-party 2, etc. who has lost in the previous suit of this case. (3) It cannot be deemed that the plaintiff constitutes a successor

C. The above determination by the court below is just in accordance with the legal principles as seen earlier, and it did not err by misapprehending the legal principles as to res judicata as alleged in the grounds of appeal.

3. As to the remaining statement of reasons for appeal, the lower court determined that the instant promise was concluded by Nonparty 1 on behalf of Nonparty 2, etc., and thus null and void pursuant to Article 124 of the Civil Act, the Defendant is obligated to implement the registration procedure for cancelling the provisional registration of this case to the Plaintiff, a legitimate mortgagee. Examining the reasoning of the lower judgment in light of the record, the lower court did not err in its determination by misapprehending the facts beyond the bounds of the due diligence due to free evaluation, contrary to logical and empirical rules, contrary to what is alleged in the grounds of appeal

4. Conclusion

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 Park Sang-ok

Justices Ansan-chul

Jeju High Court Decision 201No. 50

Justices Kim Jong-hwan