A. Res judicata of the judgment dismissed without determining whether the subject matter of a lawsuit exists

(b) Method to cancel the protocol prior to filing a lawsuit, and to exclude the res judicata effect of the judgment to cancel the registration made by the protocol.

C. Whether res judicata effect of the judgment on the claim for cancellation of registration on the ground of invalidity of cause may extend to the claim for cancellation of registration on the ground of repayment of secured obligation (negative)

A. The appellate court's judgment of the second lawsuit against the defendant is in conflict with the res judicata effect of the judgment of the first lawsuit against the plaintiff's claim for cancellation of ownership transfer registration in the third lawsuit against the defendant, and the second lawsuit is dismissed without making a substantial decision as to the relation of rights, which is the subject matter of the lawsuit, the res judicata effect of the judgment of the second lawsuit would result in the conclusion of the judgment denying the right to claim cancellation registration on the ground of a conflict of res judicata effect. Thus, if the subject matter of the second lawsuit is the same as the subject matter of the second lawsuit, the court cannot make a decision different from the judgment of the previous lawsuit

B. In the previous suit seeking a cancellation of registration made by the protocol prior to the filing of a lawsuit, the validity of the prior suit cannot be asserted unless the claim is revoked by a quasi-adjudication, and even if the protocol prior to the filing of the lawsuit has been revoked, the res judicata of the judgment shall not be excluded as a matter of course without going through the retrial procedure, and unless the fact of such revocation is asserted by the time the argument is concluded at the time of the closing of argument in the second cancellation lawsuit thereafter, the res judicata of the judgment prior to the filing of the second suit

C. The claim in the principal lawsuit seeking cancellation on the ground that the secured obligation was repaid for the registration of transfer of ownership made for the purpose of security, and the claim in the prior lawsuit seeking cancellation on the ground that the registration of transfer of ownership is null and void cannot be deemed identical to the subject matter of a lawsuit. Therefore, the res judicata effect of a final and conclusive judgment in the prior lawsuit

A. Article 202(1)(b) of the Civil Procedure Act

Supreme Court Decision 74Da1689 Delivered on February 10, 1975

[Judgment of the court below]

Attorney Lee Jong-hoon, Counsel for the defendant-appellant

Seoul High Court Decision 81Na4057 delivered on June 18, 1982

The judgment below is reversed and the case is remanded to Seoul High Court.

The defendant's attorney's grounds of appeal are examined.

1. According to the facts and records of the judgment of the court below, the plaintiff filed a lawsuit for cancellation of ownership transfer registration of this case filed before the defendant on the ground that the registration has been completed without any cause, and the judgment of the court below became final and conclusive (hereinafter the first lawsuit), and again filed a lawsuit for cancellation registration in the same manner as Seoul District Court 78Gahap56722, but the lawsuit for cancellation was also ruled against the plaintiff, which became final and conclusive by the judgment of the Supreme Court (hereinafter the second lawsuit) and again filed a lawsuit for cancellation registration of this case (hereinafter the second lawsuit) by the judgment of the appellate court (hereinafter the second lawsuit), and the third-lane lawsuit for cancellation of ownership transfer registration of this case was again instituted by the telephone protocol between the plaintiff and the defendant. The reason why the plaintiff dismissed the plaintiff's claim in the judgment of the second lawsuit is recognized as having violated res judicata effect unless the protocol for cancellation of ownership transfer registration of this case has been revoked by a quasi-adjudication (hereinafter the second lawsuit). The ground for dismissal of the plaintiff's claim in the judgment of the second lawsuit is recognized as res judicata (272).

2. However, the court below rejected the defendant's defense that the third lawsuit for the cancellation of registration in this case, which is the third lawsuit, conflict with the res judicata of the previous lawsuit, for the following reasons.

In other words, the judgment of the second lawsuit (79Na1435) only tried and judged whether the conflict of res judicata, which is one of the requirements for the protection of rights, has not been actually determined as to the relationship of rights which is the object of the lawsuit, and the effect of the judgment is limited to the existence of the requirements for the protection of rights (whether it conflicts with res judicata), and it does not extend to the existence of the plaintiff's right to claim the cancellation of the registration of ownership transfer registration of the real estate in this case, and the judgment of the first lawsuit (72Gahap42) also does not conflict with the validity of the plaintiff's claim, and there is no res judicata in this case. Thus, the claim for the cancellation registration of the lawsuit in this case is final and conclusive by the action of quasi-deliberation after the closing of argument in the second lawsuit in this case, and since the obligation subject to the ownership transfer registration of this case, which has been completed for the purpose of security, is the cause of a claim that becomes null and void after

3. However, with respect to the rights or legal relations determined in the final and conclusive judgment of the previous suit, the court is bound by the detention in which the subject matter of the lawsuit is identical to that of the previous suit, and this is so-called binding force of res judicata. Thus, the appellate judgment of the second lawsuit (79Na1435) which is the previous suit of the lawsuit of this case is dismissed by the plaintiff's claim against the res judicata of the judgment of the first lawsuit prior to the lawsuit of this case (72Gahap42). Thus, the res judicata of the judgment of the previous lawsuit of this case is against the conclusion of the judgment denying the right to claim for cancellation on the ground of a conflict of res judicata as above. If the subject matter of the lawsuit of this case is identical to the subject matter of the lawsuit of the previous lawsuit of this case, the court cannot make a decision different from the judgment of the previous lawsuit as to the res judicata effect of the previous lawsuit of this case, and in this case, the claim for cancellation of the registration of this case can not be dismissed as it conflicts with the res judicata effect of the judgment of the judgment of the judgment of the first lawsuit.

Therefore, it is examined whether the lawsuit in this case is identical to the lawsuit in the second lawsuit in the previous lawsuit. The plaintiff primarily used the seal of the plaintiff without any reason and made the registration of transfer of ownership in the name of the defendant without permission, and the plaintiff claims the registration of cancellation on the ground that the protocol of lawsuit in the name of the defendant was revoked by quasi-deliberation, and the transfer of ownership in this case has been filed as a preliminary security on the ground that the transfer of ownership in this case has been made as a debt security. In the first instance, the claim that the registration of invalidation for which the transfer of ownership in this case was made without any reason is identical to the cause of the second lawsuit in this respect, and thus, the claim for the registration of cancellation in this case is identical to the cause of the second lawsuit in this respect, barring special circumstances, it cannot be deemed that the claim in this case conflicts with the res judicata effect of the judgment in the second lawsuit in the previous lawsuit.

Even if the protocol for the settlement of a lawsuit, which served as the basis of the judgment of the court of the first lawsuit (Supreme Court Decision 72Gahap42 Decided the first lawsuit, has been revoked, as alleged by the plaintiff, res judicata of the judgment of the said first lawsuit is not naturally excluded without being followed by the procedure for retrial, and it is clear in the record that the said revocation is not asserted by the time the argument of the plaintiff until the closing of argument in the second lawsuit, and thus, it cannot be established as a ground for excluding res judicata of the judgment

Nevertheless, the court below erred by misapprehending the legal principles of res judicata in determining that the plaintiff's claim for cancellation registration based on the main cause of the plaintiff's primary claim does not conflict with the res judicata of the previous lawsuit and then rejected the defendant's defense.

Next, with respect to the Plaintiff’s claim for cancellation registration based on the above conjunctive cause, since the Plaintiff’s claim for cancellation registration is filed on the ground that the secured obligation of the ownership transfer registration of this case, which was completed for the purpose of security after the closing of argument in the second lawsuit, was repaid after the closure of argument in the second lawsuit, the judgment of the court below that the subject matter of lawsuit is identical to that of the previous lawsuit claiming the cancellation registration on the ground that the ownership transfer registration of this case is null and void, is justified

If so, the court below should further examine and determine the propriety of the cancellation registration claim based on the above conjunctive cause. However, the court below did not examine and determine the above conjunctive cause as a result of accepting the above primary cause of claim.

3. Ultimately, the judgment below is reversed and the case is remanded to the Seoul High Court for further proceedings consistent with this Opinion by the assent of all participating Justices on the ground that the above violation of the law by the court below constitutes the ground for reversal under Article 12(2) of the Act on Special Cases Concerning the Promotion, etc.

Justices Lee Lee Sung-soo (Presiding Justice)