[1] Whether it is permissible to claim, in addition to the claim for cancellation of the registration of real estate ownership transfer in addition to the claim for cancellation of the registration of real estate ownership transfer (affirmative), and whether it is allowed to claim, separately, compensation after the execution becomes impossible after the judgment of the claim for cancellation of the registration of real estate ownership transfer becomes final and conclusive (affirmative)

[2] The amount of damages caused by nonperformance of the duty to register the cancellation of ownership transfer registration and the amount of compensatory damages in case where the duty to register cancellation becomes impossible after the judgment of claim for cancellation of ownership transfer registration becomes final and conclusive

[3] The case holding that where Gap sold the ownership transfer registration to another person after the completion of the ownership transfer registration for the real estate by coercion Eul's defective declaration of intention and completed the ownership transfer registration for the real estate, Eul's obligation to cancel the ownership transfer registration for the subsequent purchaser of the real estate becomes impossible when the lawsuit against Eul against the subsequent purchaser of the real estate becomes final and conclusive

[1] Articles 248, 251, and 253 of the Civil Procedure Act / [2] Article 393 of the Civil Act / [3] Articles 186, 245 (2), and 390 of the Civil Act

［1］ 대법원 1975. 7. 22. 선고 75다450 판결 (공1975, 8610) 대법원 2006. 1. 27. 선고 2005다39013 판결 ［2］［3］ 대법원 2005. 9. 15. 선고 2005다29474 판결 (공2005하, 1608)

Plaintiff 1 and one other (Law Firm Chungcheong, Attorneys Park Yong-han et al., Counsel for the plaintiff-appellant)

Korea

Seoul High Court Decision 2004Na74035 delivered on August 18, 2005

The part of the lower judgment against the Defendant is reversed, and the case is remanded to the Seoul High Court.

We also examine the Plaintiffs and the Defendant’s grounds of appeal.

1. The defendant, as the ground of appeal, asserts that the plaintiffs did not have a legitimate title to claim damages of this case against the defendant, since the plaintiffs did not have a legitimate title to claim damages of this case at the time of preparation of the protocol of settlement of the complaint telephone as of August 1, 1980 with the plaintiffs, as to each of the real estate listed in [Attachment 1, 2, and 300 shares of 967 of the real estate and the real estate listed in [Attachment 4]

However, the above argument in the grounds of appeal is without merit, since the right to claim damages related to the duty to cancel the registration of transfer of ownership, etc., which was completed in relation to real estate held in title trust, externally belongs to the title trustee. In addition, the court below rejected the plaintiffs' assertion on August 1, 1980 as stated in the judgment of the court below, on the ground of its decision, that at the time of preparation of the protocol of compromise with the plaintiffs as to August 1, 1980, the plaintiffs was against the title trustee for 300/967 shares out of the real estate listed in the separate sheet Nos. 1, 2, and 3 of the judgment of the court below and the real estate listed in the separate sheet No. 4 of the judgment of the court below (the court below determined that the plaintiff's claim against the defendant, etc. was based on this decision). In light of the records, the judgment of the court below is just

2. A. According to the reasoning of the judgment below, the court below rejected the judgment below on the following grounds: (a) while claiming compensation for damages caused by the plaintiffs' nonperformance; (b) the registration of transfer of ownership, which was made in the name of the defendant with respect to 300/30 of the real estate listed in the attached list Nos. 1, 2, and 3 of the judgment below as well as the real estate listed in paragraph (4) of the attached list Nos. 1, 1, 2, and 300 of the real estate listed in the attached list No. 4 of the judgment below, was registered as the cause invalidation was finalized by the judgment of quasi-adjudication; and (c) the defendant was liable for cancelling the registration of transfer of ownership on September 24, 2002, which became final and conclusive by the quasi-adjudication judgment; and (d) it was impossible for the defendant to perform the obligation under the principle of good faith as a person causing an unlawful state as a person causing

Pursuant to the judgment of quasi-deliberation on September 24, 2002, the ownership transfer registration which was made in the name of the defendant with respect to 300/967 shares among the real estate listed in the separate sheet Nos. 1, 2, and 3 of the attached list No. 4 of the judgment of the court below, among the real estate listed in the separate sheet No. 1, 2, and 300 shares in the separate sheet No. 4 of the judgment of the court below, was registered as invalid. The defendant bears the obligation to cancel the registration of ownership transfer in the name of the defendant in response to the plaintiffs' right to claim for cancellation of ownership transfer based on the plaintiffs' ownership (the judgment in favor of the plaintiffs against the defendant in each claim for cancellation of the above ownership transfer registration against the defendant). Furthermore, there is no ground to view that the defendant had a claim and a debt relationship to cancel the registration of ownership transfer in the name of co-defendant 1, etc

B. However, the lower court’s determination is difficult to accept.

In addition to the claim for the registration of the ownership transfer of real estate, where a creditor files a lawsuit by combining the subject claim (the subject claim) in addition to the compensation that will be substituted therefor, and where the subject claim (the subject claim) is filed on the premise of the existence of the original claim for payment, or where execution becomes impossible after the judgment becomes final and conclusive or after the judgment becomes final and conclusive, the consolidation of both parties is allowed as belonging to the simple combination between the present claim for payment and the future claim for payment (see Supreme Court Decision 75Da450, Jul. 22, 1975, etc.). Moreover, the subject claim is naturally allowed to seek the compensation by separate lawsuit after the obligation for the registration of the ownership transfer becomes impossible after the judgment becomes final and conclusive, and this is also the same in the case of the claim for the registration of the ownership transfer of real estate.

Meanwhile, as a matter of principle, the amount of damages suffered by the right holder due to the impossibility of performance of the obligation to register the cancellation of the registration of ownership transfer is equivalent to the market price of the object at the time of the impossibility of performance (see Supreme Court Decision 2005Da29474, Sept. 15, 2005). In addition, the amount of compensatory damages should also be deemed the amount equivalent to the market price of the object at the time of the impossibility of performance of the obligation to register the cancellation of the registration of ownership transfer where the obligation to perform the obligation to perform the obligation becomes impossible after the final and conclusive judgment ordering the performance of the current claim, not where the claim for payment and the claim for payment

In light of the above legal principles, as recognized by the court below, the plaintiffs filed a lawsuit against the defendant in 2002 against the defendant for the cancellation of the transfer registration of ownership, and the quasi-deliberation judgment that revoked the transfer registration of ownership in the name of the defendant becomes final and conclusive on August 12, 1980 with the plaintiffs, which serve as the foundation for the registration of transfer of ownership in the name of the defendant, the defendant was liable to implement the procedure for cancellation registration. After the defendant's appeal was dismissed, the defendant's appeal was dismissed on November 26, 2004, and the above judgment became final and conclusive. Meanwhile, the plaintiffs filed the lawsuit against the co-defendant 1 of the court below in 2003 and the co-defendant 2, 3, and 4 of the court below, and the court below dismissed the plaintiffs' claim for cancellation of the transfer registration of ownership as to each real estate stated in the list 1, 2, and 3 of the judgment below as to each real estate in the list of the plaintiffs' joint defendants and the above list 430 on April 193.

However, in such a case, when the lawsuit filed by the plaintiffs against the co-defendant 1 of the court below and the co-defendant 2, 3, and 4 of the court below against the plaintiff 2, 3, and 4 for cancellation of ownership transfer registration becomes final and conclusive, the defendant's obligation to register the cancellation of ownership transfer registration against the plaintiffs is in an unexecution condition. Even if the plaintiffs were to be recognized as the prescription period for the acquisition of the registered titleholder's registration in the lawsuit for cancellation of the above registration, it is not deemed that the plaintiffs had already reached an impossible status at the time of the completion of the prescription period (see, e.g., the above 2005Da29474, Jan. 30, 20

Therefore, the defendant is liable to compensate the plaintiffs for the amount equivalent to the market price of each real estate of this case at the time of impossibility of execution as compensation for transfer due to impossibility of execution of the duty to register cancellation of ownership transfer registration.

Furthermore, in light of the records, it is reasonable to view that the purport of the defendant's claim for compensatory damages for reasons of non-performance of the obligation to restore ownership, including the obligation to cancel the registration of transfer of ownership in the name of co-defendant 1, etc. is included in the purport of claiming compensatory damages for reasons of future impossibility of execution of the obligation to cancel registration of transfer of ownership.

Nevertheless, the court below rejected the plaintiffs' claim for compensatory damages for reasons of the defendant's non-performance of obligation, and this part of the judgment below is erroneous in the misapprehension of legal principles which affected the conclusion of the judgment, and therefore, the plaintiffs' ground of appeal pointing this out has merit.

3. Meanwhile, the lower court accepted the Plaintiffs’ claim for damages due to tort, one of the selective claims against the Defendant, and calculated the amount of damages on the basis of the time when the prescriptive acquisition by joint Defendant 1, etc. of the lower court’s judgment was completed, and limited to 70% of the Defendant’s liability, and accepted part of the Plaintiffs’ claim amount.

However, in light of the above, the plaintiff's ground of appeal concerning the claim for damages due to non-performance, one of the selective claims, is accepted, but the court below accepted the claim for damages due to the plaintiffs' tort and reversed and remanded the part of the claim amount as above, and let the court below calculate the amount of damages due to the defendant's non-performance according to the above calculation base point, and the defendant's defense of comparative negligence is also about the liability for damages due to the non-performance of obligation, and it is reasonable to review and determine it.

4. Therefore, the part of the judgment of the court below against the defendant 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 Park Jae-sik (Presiding Justice)