[1] The validity of the conciliation protocol (i.e., the same effect as the final and conclusive judgment) and whether a conciliation protocol may be asserted as invalid on the ground that its content goes against the mandatory law (negative in principle), and whether such effect equally affects the legal relationship in which the conciliation intervenor becomes a party (affirmative)

[2] In a case where the primary and primary claims against the primary defendant are not accepted, whether a lawsuit may be filed by combining with the purport that the claim against the primary defendant, which is legally incompatible with the primary defendant, is accepted (affirmative)

[3] Whether it is permissible to render a judgment on only a part of the co-litigants in a subjective and preliminary co-litigation or to render an additional judgment on behalf of the remaining co-litigants (negative), and in a case where either the primary co-litigants and either the conjunctive co-litigants have filed an appeal, the object of the

[1] Mediation is established by stating the matters agreed between the parties in the mediation protocol, and the mediation protocol has the same effect as a final and conclusive judgment, such as a protocol of judicial conciliation. Therefore, res judicata takes effect between the parties. Therefore, even if the content is in violation of compulsory law, even if it is merely a defect in the mediation, it is nothing more than a defect in the mediation, and it cannot be asserted that the mediation protocol is null and void. In addition, if the mediation protocol contains a legal relationship in which the intervenor becomes a party, the above effect of the mediation protocol does not coincide with the legal relationship of the intervenor.

[2] Since there is no basis to interpret the “claim against a part of co-litigants” under the main text of Article 70(1) of the Civil Procedure Act as “all claims against a part of co-litigants,” it is possible to file a lawsuit by combining with the purport that accepting a claim against the primary defendant in a relationship which is not legally compatible with the primary claim against the primary defendant in a case where the primary and preliminary claim against the primary defendant is not accepted.

[3] A subjective and preliminary co-litigation is a form of litigation in which all co-litigants settle the dispute between each other in relation to the same legal relationship in a lump sum without contradiction (Article 70(2) of the Civil Procedure Act). A judgment is not allowed to render a judgment only on a part of the co-litigants or to render an additional judgment on behalf of the remaining co-litigants. In addition, if one of the primary and preliminary co-litigants files an appeal in a subjective and preliminary co-litigation, the final judgment on the part of the claim against the other co-litigants shall also be interrupted, and it shall be subject to the judgment by the appellate court.

[1] Article 29 of the Judicial Conciliation of Civil Disputes Act; Articles 218, 220, and 461 of the Civil Procedure Act / [2] Article 70(1) of the Civil Procedure Act / [3] Articles 67(1) and (2), and 70 of the Civil Procedure Act

[1] Supreme Court Decision 90Da24953 Decided December 11, 1990 (Gong1991, 468), Supreme Court Decision 92Da1903 Decided October 27, 1992 (Gong1992, 3271), Supreme Court Decision 2006Da78732 Decided April 26, 2007 (Gong2007Sang, 770) / [2] Supreme Court Decision 2006Da47677 Decided March 26, 2009 (Gong209Sang, 528) / [3] Supreme Court Decision 2009Da4355 Decided February 24, 2011 (Gong2011Sang, 632)

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Defendant

Jeju District Court Decision 2009Na1207, 1214 Decided December 2, 2009

The judgment below is reversed, and the case is remanded to Jeju District Court Panel Division.

The grounds of appeal and supplementary appeal are examined.

1. As to the Defendant-Counterclaim Plaintiff’s ground of appeal

A. Mediation is established by stating the matters agreed between the parties in the protocol, and the mediation protocol has the same effect as a final and conclusive judgment, such as a protocol of judicial conciliation. Therefore, res judicata takes effect between the parties. Thus, even if the content is in violation of compulsory law, even if it is merely a defect in the mediation, it is nothing more than a defect in the mediation, and it cannot be asserted that the mediation protocol is null and void (see Supreme Court Decision 2006Da78732, Apr. 26, 2007, etc.). In addition, in cases where the mediation protocol contains a legal relationship between the parties to the mediation, the above effect of the mediation protocol does not coincide with the legal relationship of the intervenor.

In addition, in a creditor subrogation lawsuit, where the right of the creditor to be preserved by subrogation is not recognized as to the debtor, the creditor himself/herself becomes the plaintiff and is no longer entitled to exercise the right to the third debtor's right to the third debtor, so the subrogation lawsuit is unlawful and dismissed (see Supreme Court Decision 2005Da27188, Sept. 29, 2005, etc.).

B. According to the reasoning of the lower judgment, the lower court acknowledged the following facts.

(1) The Plaintiff (Counterclaim Defendant) (hereinafter “Plaintiff”) is a branch church belonging to the Korea Gender Equality and Family Maintenance Foundation (hereinafter “Korea Gender Equality Foundation”), which is not a legal entity. The Defendant (Counterclaim Plaintiff) (hereinafter “Defendant”) is a representative of the Plaintiff around November 1993 and was in charge of the Plaintiff’s duties by December 2007.

(2) On August 19, 200, the Jeju District Court Decision 99Kadan10195 (No. 10195) between Defendant 2 of the first instance trial and the Korea Gender Equality Foundation in India, etc., the following mediation (hereinafter “instant mediation”) was established among the Defendant’s participation in the conciliation with the permission of the judge in charge of conciliation by attending as interested parties. In other words, the Korea Gender Equality Foundation shall pay to Defendant 2 of the first instance trial the down payment of KRW 6 million until August 19, 200, the intermediate payment of KRW 10 million until September 19, 200, and the remainder of KRW 10 million until October 19, 200, respectively.

However, in the above Section B, the phrase "the plaintiff purchased the land of this case or completed the registration of transfer of ownership in the name of the defendant for convenience" is added to the above Section B.

(3) On January 18, 2001, the Defendant completed the registration of ownership transfer under the name of the Defendant (hereinafter “instant registration of ownership transfer”) for the instant land from Defendant 2 of the first instance trial on the ground of sale as of August 19, 200 pursuant to the instant mediation protocol.

C. After recognizing the above facts, the lower court determined that the title trust agreement between the Plaintiff and the Defendant established in the instant conciliation is null and void, and that the instant registration of ownership transfer also takes effect pursuant to Article 4(2) of the Act on the Registration of Real Estate under Actual Titleholder’s Name (hereinafter “Real Estate Real Name Act”), and accepted the Plaintiff’s claim by subrogationing Defendant 2 of the first instance trial to the Defendant seeking the implementation of the procedure for the registration of ownership transfer registration of this case.

D. However, we cannot agree with the above judgment of the court below.

In light of the aforementioned legal principles, although a title trust agreement between the Plaintiff and the Defendant is deemed null and void as it violates the Real Estate Real Name Act, the instant protocol has the same effect as the final and conclusive judgment, and res judicata takes effect as to the legal relationship that became the content of the instant protocol between Defendant 2 and the Defendant, the Intervenor, who is the parties to the instant protocol. Therefore, even if the content of the instant protocol violates compulsory provisions, as long as it is not revoked by the quasi-Review procedure, seeking cancellation of the instant transfer registration completed pursuant to the instant protocol against the Defendant is not permissible as it goes against the res judicata effect of the instant protocol. Accordingly, the Plaintiff’s obligation to transfer ownership to the Plaintiff by Defendant 2 was impossible to perform, barring any special circumstances, and thus, the Plaintiff’s right to claim ownership transfer registration against Defendant 2 is not recognized.

Ultimately, in order to preserve the right to claim ownership transfer registration against Defendant 2 of the first instance trial, the instant lawsuit for which the Plaintiff seeks to cancel the ownership transfer registration of this case by subrogationing Defendant 2 of the first instance trial in order to secure the right to claim ownership transfer registration against Defendant 2 shall be deemed unlawful as the Plaintiff

Nevertheless, the lower court accepted the Plaintiff’s claim against the Defendant regarding the lawsuit seeking the cancellation of ownership transfer registration of this case by subrogation of Defendant 2 of the first instance court. In so doing, the lower court erred by misapprehending the res judicata of the conciliation protocol and the legal doctrine of creditor subrogation lawsuit, thereby adversely affecting the conclusion of the judgment. The Defendant’s ground of

2. As to the Plaintiff’s grounds of incidental appeal

A. M&D’s subjective scope of res judicata of the conciliation protocol

The conciliation protocol has the same effect as a final and conclusive judgment and res judicata takes effect, but the res judicata does not extend to any third party other than the party, intervenor, etc. (see Supreme Court Decision 98Da38760 delivered on October 8, 199, etc.).

The lower court determined that the res judicata effect of the instant conciliation protocol between the Korea Foundation and Defendant, the first instance court Defendant 2, and the Defendant does not extend to the Plaintiff, other than the parties to the instant conciliation, on the grounds that the res judicata effect does not extend to those who are not parties to the instant conciliation protocol

In light of the aforementioned legal principles, the lower court’s determination is just and acceptable. In so doing, it did not err by misapprehending the legal doctrine on the subjective scope of res judicata as alleged in the grounds of incidental appeal. Therefore, this part of the grounds of incidental appeal is without merit.

B. Meritorious of legal principles as to preliminary co-litigation

(1) There is no ground to interpret the “claim against a part of co-litigants” under the main text of Article 70(1) of the Civil Procedure Act as “all claims against a part of co-litigants.” It is also possible to institute a lawsuit by combining the primary claim against the primary defendant in a case where the primary and preliminary claim against the primary defendant is not accepted (see Supreme Court Decision 2006Da47677, Mar. 26, 2009, etc.). In addition, a subjective and preliminary co-litigation is a form of litigation where all co-litigants resolve the dispute against the same legal relationship in a lump sum without inconsistency with each other as a single litigation procedure, and it is not allowed to render a judgment or make an additional judgment for only some co-litigants. In addition, where one of the primary and preliminary co-litigants and the primary co-litigants in a subjective and preliminary co-litigation is excluded from the judgment of the Supreme Court, and it is also allowed to render a final judgment against the other co-litigants in the judgment of 2014.

(2) Review of the reasoning and records of the lower judgment reveals the following facts.

(A) On the premise that the title trust agreement is valid around the principal claim, the Plaintiff sought implementation of the procedure for the registration of ownership transfer based on the cancellation of title trust with respect to the instant land under the premise that the title trust agreement is valid. If the title trust agreement is deemed null and void, and the principal claim is not accepted, the Plaintiff sought from Defendant 2 of the first instance trial to implement the procedure for the registration of cancellation of ownership transfer registration of the instant land, and at the same time, sought from Defendant 2 of the first instance trial to implement the registration procedure for ownership transfer

(B) The first instance court accepted the Plaintiff’s primary claim against the Defendant among the Plaintiff’s principal claim, and dismissed both the conjunctive claim against the Defendant and the first instance court Defendant 2 (and the Defendant’s counterclaim claim).

(C) Accordingly, the lower court determined that only the Defendant did not file an appeal against the part of the principal lawsuit against himself, and that the part of the Plaintiff’s conjunctive claim against Defendant 2 in the Plaintiff’s main lawsuit was excluded from the scope of the judgment of the lower court on the grounds that the Plaintiff and Defendant 2 did not appeal to both the Plaintiff and Defendant 2, and that

(3) However, in light of the above legal principles, the above determination by the court below is not acceptable.

The plaintiff's main claim is filed to the purport that if the main claim against the defendant is not accepted in the part of the main claim against the defendant (the cancellation of the ownership transfer registration against the defendant 2) and the main claim against the same defendant (the cancellation of the ownership transfer registration against the defendant 2), the main claim against the defendant 2 of the first instance trial (the main claim against the defendant and the main claim against the defendant 2 of the first instance trial are in a subjective and preliminary co-litigation relationship.

Therefore, even if only the primary defendant appealed, the part of the claim against Defendant 2 of the first instance court is not finalized, and it is subject to the judgment of the court below. Therefore, the court below did not render a judgment on the conjunctive claim against Defendant 2 of the first instance court, but did not make a judgment on this. Ultimately, the court below erred by misapprehending the legal principles on subjective and preliminary co-litigation, which affected the conclusion of the judgment. The ground of incidental appeal by the plaintiff pointing this out is with merit.

4. Conclusion

Therefore, the judgment of the court below is reversed and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Chang-suk (Presiding Justice)