[1] Where the reasoning of the judgment states that a request for judgment is groundless, whether the omission of judgment constitutes an omission of judgment (affirmative in principle), and whether an appeal against the omission of judgment is legitimate (negative)

[2] In a case where the transfer registration of ownership made in the third party in the future after the completion of the acquisition by prescription is invalidated, whether the person who has the right to claim the transfer registration of ownership based on the completion of the acquisition by prescription can seek the cancellation of the registration in the name of the third party by subrogation of the owner at the time of the completion of the acquisition by prescription (affirmative)

[1] In a judgment, in order to clarify the court's decision, the decision whether there is any omission of judgment because the conclusion is required to be stated in the text of the judgment shall be judged by the entry of the text. Thus, even if the grounds for judgment are stated without merit, it shall be deemed that there is omission of judgment unless there is any special reason, unless the reasons for judgment are explained in the text. If there is any omission of judgment, the part of the lawsuit is still pending in the original judgment and thus, it shall not be subject to appeal.

[2] Where the transfer registration of ownership made in the name of a third party is null and void after the completion of the acquisition by prescription, the person who has the right to claim the transfer registration of ownership based on the completion of the acquisition by prescription may seek the cancellation of the registration in the name of the third party by subrogation of the owner at the time of the completion of the acquisition by prescription. Meanwhile, the provisional disposition obligee claims the registration of ownership transfer based on the right to be preserved by the provisional disposition obligor after the provisional disposition registration is completed, and the provisional disposition obligee claims the cancellation of the registration of ownership transfer based on the right to be preserved by the provisional disposition obligor on behalf of the third party, on the ground that the legal act between the provisional disposition obligor and the third party is null and void after the provisional disposition registration is completed, and the provisional disposition obligee claims the cancellation of the registration of ownership transfer in the name of the third party against the obligor cannot be deemed unlawful solely on the ground that the provisional disposition obligee's claim against the third party is not related to the effect of the provisional disposition itself, as well as the effect of the provisional disposition in subrogation of the obligor's title, regardless of the substantive relationship of provisional disposition.

[1] Articles 208 and 212 of the Civil Procedure Act / [2] Articles 186, 245, and 404 of the Civil Act; Article 300 (1) of the Civil Execution Act

[1] Supreme Court Decision 2004Da43824 Decided May 27, 2005 (Gong2005Ha, 1025) Supreme Court Decision 2009Da22266 Decided July 6, 2009 (Gong2009Ha, 1427) / [2] Supreme Court Decision 90Da6651 Decided November 27, 1990 (Gong1991, 200)

Plaintiff (Attorney Yang Han-soo, Counsel for the plaintiff-appellant)

Defendant 1 and one other (Law Firm Lee, Attorneys Han-tae et al., Counsel for the defendant-appellant)

Jeju District Court Decision 2016Na5849 decided May 17, 2017

Of the claim against Defendant 1, the appeal on the portion of 470 square meters in the attached Form No. 2 of the lower judgment on the portion of 84 square meters in the area of 470 square meters in Jeju-si ( Address omitted). The remaining appeal is dismissed. The costs of appeal are assessed against the Plaintiff.

1. We examine ex officio Defendant 1’s appeal as to the share indicated in the order, as to the legitimacy of the appeal.

A. In order to clarify the judgment of the court, the decision whether there is any omission of judgment because the conclusion is required to be entered in the text of the judgment shall be judged by the entry in the text. Thus, even if the reasons for the judgment are explained without any justifiable reasons, it shall be deemed that there is omission of judgment unless there is any special reason in the text. If there is any omission in judgment, the part of lawsuit is still pending in the original judgment and thus it shall not be subject to appeal. Thus, the appeal on that part is unlawful (see Supreme Court Decisions 2004Da43824, May 27, 2005; 2009Da22666, July 6, 2009, etc.).

B. According to the records and reasoning of the lower judgment, the Plaintiff filed a claim against Defendant 1 for the cancellation of the ownership transfer registration on the ground of the completion of the prescriptive acquisition period, against Defendant 2, on the ground that the ownership transfer registration on the instant land that was transferred by Defendant 1 was null and void. The first instance court dismissed all the Plaintiff’s claims against the Defendants with respect to the share of 470/60 of the instant land, and accepted all the Plaintiff’s claim against the Defendants with respect to the share of 133/60 of the transfer to Defendant 2 after the provisional disposition of prohibition of disposal was registered. The lower court appealed against the part against the Plaintiff in the first instance judgment against the Plaintiff among the part against Defendant 1’s claim against Defendant 1, on the ground that “ insofar as the ownership transfer registration was valid, Defendant 1’s obligation of ownership transfer registration on the said part became impossible,” but did not determine any fact.

C. Therefore, in light of the legal principles as seen earlier, the lower court omitted the judgment on the above part of the claim, and since this part of the claim is still pending in the lower court and thus is not subject to appeal, the Plaintiff’s appeal on this part is unlawful.

2. The grounds of appeal are examined.

A. As to the first ground for appeal

1) Where the transfer registration of ownership made in the name of a third party is null and void after the completion of the acquisition by prescription, the person who has the right to claim the transfer registration of ownership based on the completion of the acquisition by prescription may seek the cancellation of the registration in the name of a third party on behalf of the owner at the time of the completion of the acquisition by prescription (see Supreme Court Decision 90Da6651, Nov. 27, 1990, etc.). Meanwhile, the provisional disposition obligee’s right to claim the transfer registration based on the completion of the acquisition by prescription against the provisional disposition obligor after the completion of the registration of prohibition of disposal of ownership transfer based on the right to preserve the provisional disposition, and also a third party’s right to claim the cancellation of the transfer registration by subrogation of the provisional disposition obligor and the third party on behalf of the provisional disposition obligor on the ground that the legal act between the provisional disposition obligor and the third party after the registration becomes null and void, it cannot be viewed that the provisional disposition obligee’s right to claim the cancellation against the third party cannot be viewed as unlawful regardless of the debtor’s right to claim for provisional disposition.

2) According to the records and reasoning of the judgment below, Defendant 2’s transfer registration is disposed of by Defendant 1 in order to exempt the Plaintiff from the obligation of ownership transfer registration by knowing the completion of the acquisition by prescription of the instant land, and Defendant 2 actively participated and acquired it, and thus Defendant 1’s claim for cancellation against Defendant 2 by subrogationing Defendant 1, claiming that the cancellation is null and void pursuant to Article 103 of the Civil Act, in lieu of Defendant 1. The court below determined that Defendant 2’s claim for cancellation of the above share against Defendant 2 was unlawful on the ground that the Plaintiff may claim cancellation of the registration in violation of the provisional disposition in violation of the provisional disposition in favor of the original claim against Defendant 1, on the ground that, inasmuch as Defendant 2, prior to the transfer of 133/60 of the instant land by Defendant 1, the Plaintiff as Defendant 1, the debtor, was allowed to file a claim for cancellation of the registration in violation of the provisional disposition after the completion

3) In light of the legal principles as seen earlier, the Plaintiff’s claim against Defendant 1 against Defendant 1 cannot be deemed unlawful solely on the ground that it is possible to deny the validity of Defendant 1’s act of disposal in conflict with the provisional disposition when it becomes final and conclusive after obtaining a favorable judgment on the merits against Defendant 1, and thus, it cannot be deemed that the Plaintiff’s claim against Defendant 2 is unlawful as there is no benefit of lawsuit. Therefore, the lower court’s determination is erroneous. However, for the following reasons, it is difficult to view Defendant 2’s registration on the instant land as null and void, and therefore, it is apparent that the Plaintiff’s claim on this part, which is premised on the invalidity of the registration

B. As to the grounds of appeal Nos. 2 and 3

Examining the reasoning of the judgment below in light of the relevant legal principles and records, the court below is just in rejecting the plaintiff's claim on the ground that it is not sufficient to recognize Defendant 2's registration as invalid because it falls under Article 103 of the Civil Act, and there is no other evidence to acknowledge it. In so doing, the court below did not err by misapprehending the legal principles on the scope of the plaintiff's ownership and the right to claim for transfer of ownership, abuse of rights, Article 103

3. Therefore, among the claims against Defendant 1, the appeal as to the share of 470 percent of the land of this case is dismissed. The remaining appeals are dismissed. 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 Poe-young (Presiding Justice)