[1] The scope of "third party" under Article 4 (3) of the Act on the Registration of Real Estate under Actual Titleholder's Name

[2] In a case where the subject matter of a lawsuit is not identical, if the subject matter of a lawsuit in the previous lawsuit is inconsistent with the legal relationship established in the previous lawsuit, whether res judicata of the judgment in the previous lawsuit affects the subsequent lawsuit (affirmative), and the meaning of “legal relationship established in the previous lawsuit” in this case

[1] Article 4 (3) of the Act on the Registration of Real Estate under Actual Titleholder's Name / [2] Article 216 (1) of the Civil Procedure Act

[1] Supreme Court Decision 99Da56529 delivered on March 28, 2000 / [2] Supreme Court Decision 2000Da47361 delivered on December 27, 2002 (Gong2003Sang, 495) Supreme Court Decision 2004Da55698 Delivered on December 23, 2005 (Gong2006Sang, 169)

Plaintiff

Korea Deposit Insurance Corporation for bankrupt Mutual Savings and Finance Companies

Daegu District Court Decision 2007Na17886 Decided March 27, 2008

The appeal is dismissed. The costs of appeal are assessed against the Plaintiff (Appointed Party).

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

The Plaintiff (Appointed Party; hereinafter referred to as the “Plaintiff”) appealed the building of this case to Nonparty 1 on the ground that the building of this case was owned by Nonparty 1, on April 1, 1997, to the Defendant, the owner of the site, for unjust enrichment from April 1, 1997 to February 7, 2001, which ordered the Defendant to pay unjust enrichment from the land rents to April 20, 2001 (hereinafter referred to as the “first claim”), and after the decision became final and conclusive, the building of this case was inherited to Nonparty 1, the Plaintiff, and the designated parties (hereinafter referred to as the “Plaintiff et al.”) on the ground that the inheritance shares were inherited to the Defendant in proportion to the inheritance shares, and thus, the portion of the building of this case to which the Plaintiff et al. paid unjust enrichment from the land rents to the Defendant shall not become final and conclusive by the judgment of Daegu District Court Decision 201Na1239, Jul. 10, 2003. 203.

However, the circumstance that part of the amount of debt confirmed by the judgment of the first suit is repaid is not that reason for Nonparty 1, the debtor of the judgment, to claim as a lawsuit of objection under Article 44 of the Civil Execution Act, and the plaintiff et al., to claim as a lawsuit of objection against the claim of Article 44 of the Civil Execution Act. Thus, the argument in the

2. Regarding ground of appeal No. 2

According to the reasoning of the judgment below, the court below determined that the defendant's application for compulsory auction by the defendant's compulsory auction cannot be deemed to constitute an anti-social juristic act solely on the ground that the above building constitutes an anti-social juristic act, although the building in this case was registered as a sole person of Nonparty 1 through the second suit against the plaintiff et al., but the facts were already known that it was owned by Nonparty 1 and the plaintiff et al. at the time, and the defendant was paid rent pursuant to the judgment of the second suit by the plaintiff et al., as the owner of the site, in the lawsuit in this case, alleged that the above building in this case was owned by Nonparty 1 and applied for compulsory auction according to the judgment of the first suit in this case constitutes an anti-social juristic act. In light of the records

In addition, the plaintiff asserts that the defendant's application for compulsory auction against the building of this case for the execution title with the judgment of the first lawsuit against the non-party 1 as the execution title constitutes a violation of the good faith principle or an abuse of rights. However, this cannot be a legitimate ground for appeal as it is only asserted in the

3. As to the third ground for appeal

Where a person who has trusted a real right to real estate prior to the enforcement of the Act on the Registration of Real Estate under Actual Titleholder's Name (hereinafter referred to as the "Real Estate Real Name Act") fails to make a real name registration within one year (hereinafter referred to as the "suspension period") from the enforcement date of the said Act, or where litigation as to the real right to real estate is instituted in a court before the enforcement date of the said Act, or within one year from the date a final and conclusive judgment on the litigation (including a case having the same effect as the above), the real right to real estate is not made under a real name registration after the expiration of one year from the date of the grace period or the final and conclusive judgment, except as otherwise provided for in the exception provided for in the said Act, and any change in the real right to real estate caused by such registration shall be null and void (Article 4(1) and (2), the main sentence of Article 11(1) and (4), and Article 12(1) of the said Act, and the invalidity thereof shall not be asserted against a third party (Article 4(3) of the above Act, 90.

According to the records, even if the plaintiff et al. and the non-party 1's father were constructed the building of this case and the non-party 1's non-party 1's non-party 1's building on the site of this case (one factory evaluation building on the same site), and the non-party 1 trusted the building of this case and the non-party 1's non-party 1's title trust on May 29, 192. However, the non-party 1 completed the registration of ownership transfer on the non-party 1's auction on March 31, 1997 and transferred the ownership of the non-party 1 on March 26, 201. On the other hand, the non-party 2 and the non-party 1's wife were the non-party 1's owner's non-party 1's non-party 1's non-party 1's non-party 1's non-party 1's non-party 1's title trust registration on the above non-party 1's title trust judgment.

The judgment below to the same purport is just, and contrary to the allegations in the grounds of appeal, there is no error in the misapprehension of legal principles as to "third party" under Article 4 (3) of the Real Estate Real Name Act or incomplete hearing.

4. As to the fourth ground for appeal

Even though the subject matter of a lawsuit brought before (hereinafter “the prior suit”) and the lawsuit brought after (hereinafter “the subsequent suit”) are not the same, if the judgment on the subject matter of a prior suit becomes a prior question in the prior suit or is inconsistent with the legal relationship established in the prior suit, the res judicata effect of the judgment in the prior suit is excessive to the subsequent suit and does not allow the subsequent suit to make any assertion different from the judgment in the prior suit. However, res judicata effect of a final and conclusive judgment does not affect the conclusion of the judgment on the existence of a legal relationship alleged in the subject matter of a lawsuit, and it does not affect the existence of a legal relationship as the premise. Thus, the legal relationship established in the prior suit refers to the legal relationship that has res judicata effect of the final and conclusive judgment, not to the legal relationship that is the premise thereof (see, e.g., Supreme Court Decisions 200Da47361, Dec. 27, 2002; 204Da5698, Dec. 23, 2005).

In light of the records, the existence of the right to claim restitution of unjust enrichment, which is the subject matter of the lawsuit in the lawsuit in the lawsuit in the lawsuit in the lawsuit in the lawsuit in the lawsuit in the lawsuit in the lawsuit in the lawsuit in the lawsuit in the lawsuit in the lawsuit in the lawsuit in the lawsuit in the lawsuit in the second lawsuit, is different from the existence of the right to claim restitution of unjust enrichment, which is the subject matter of the lawsuit in the lawsuit in the lawsuit in the lawsuit in the lawsuit in the lawsuit in the lawsuit in the lawsuit in the lawsuit in the above lawsuit in the third party in the lawsuit in the lawsuit in the lawsuit in the lawsuit in the lawsuit in the lawsuit in the above lawsuit in the lawsuit in the lawsuit in the lawsuit in the lawsuit in the above lawsuit in the lawsuit in the lawsuit in the third party in the lawsuit in the lawsuit in the lawsuit in the lawsuit in the judgment in the lawsuit in the lawsuit in the lawsuit in the above lawsuit in the lawsuit in the lawsuit in the lawsuit in the lawsuit in the lawsuit in the above lawsuit in the judgment in the lawsuit in the lawsuit in the lawsuit in the lawsuit in the above lawsuit in the above lawsuit in the lawsuit in the above lawsuit in the first lawsuit in the judgment

The judgment below to the same purport is just, and there is no error in the misapprehension of legal principles as to the objective scope of res judicata as alleged in the grounds of appeal.

5. 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.

Justices Park Si-hwan (Presiding Justice)