Gwangju District Court-2011-Na-14189 ( October 15, 2012)

Acquisition of State property under the name of another person by an employee engaged in the affairs concerning State property shall be null and void.

Acquisition of State property under the name of another person by an employee engaged in the affairs concerning State property shall be null and void.

Article 7 of the State Property Act

Supreme Court-2012-C-60688 (No. 29, 2014)

Korea

Park A, SB

Gwangju District Court-2011-Na-14189 ( October 15, 2012)

2014.29

All appeals are dismissed.

The costs of appeal are assessed against the Defendants.

The grounds of appeal are examined.

1. In full view of the fact that Article 7 of the former State Property Act prohibits an employee engaged in the affairs related to State property from strictly pointing out the most conspicuous act suspected of having committed an unlawful act with respect to an employee engaged in the affairs related to State property in order to promote the fairness of the affairs related to the disposal of State property in accordance with the legislative intent of Article 1 of the same Act, while prescribing that the act of acquiring State property in the name of another person in violation of the prohibition shall be null and void as an evasion of law in order to avoid the application of the provisions of the same Act, which are to be strictly strict, which provides that the act of acquiring State property in the name of another person shall be null and void. Furthermore, unless the same Act does not provide for a provision that restricts the other party who is entitled to assert the invalidation in order to protect the transaction safety, the invalidation may be asserted in principle against

Meanwhile, res judicata of a final and conclusive judgment does not extend to the conclusion of the judgment on the existence of legal relations alleged as a subject matter of lawsuit, and does not extend to the existence of legal relations. As such, res judicata of the final and conclusive judgment on the claim for the performance of procedures for the registration of ownership transfer does not extend to the existence of a claim for registration of ownership transfer, which was the subject matter of lawsuit, and does not extend to the existence of ownership of the subject matter of lawsuit. Therefore, in a case where a party against a claim for registration of ownership transfer has lost the means of restoring the ownership of the subject matter of lawsuit due to res judicata of the final and conclusive judgment, even if there is no means of restoring the ownership of the subject matter of lawsuit due to the res judicata of the final and conclusive judgment, and as long as it is not entirely impossible to exercise ownership due to the absence of registration as the owner on the registry, it is not always concluded that the claim for ownership confirmation itself is against the good faith principle in the lawsuit against a third party, including the other party to the lawsuit that denies ownership, barring special circumstances.

In addition, where the subject matter of a prior suit is a claim for ownership transfer registration, the person who received the ownership transfer registration on the subject matter after the closing of argument in the prior suit does not fall under the successor following the closure of argument that has res judicata effect in the prior suit.

2. (1) The lower court determined that: (a) the sales contract on the instant land concluded between the Plaintiff and the Plaintiff, a co-defendant of the lower judgment, with the purchaser of the instant land, was null and void as it borrowed the name of KimO in order to acquire State property; (b) the ownership transfer registration in the name of the Defendant Park Jong-A, which was completed on the ground of the foregoing, and the ownership transfer registration in the name of the Defendant Park Jong-B, which was completed on the ground thereof; and (c) the establishment registration of the ownership in the name of the Defendant Park Jong-B, which was completed on the ground thereof, was null and void; (b) the ownership transfer registration in the instant land filed by the Defendant Park Jong-A against the Plaintiff and KimO was made final and conclusive, and accordingly, the ownership transfer registration in the instant land was completed successively; (c) even if the Plaintiff lost in the instant lawsuit did not have any way to recover the title of ownership in the registry due to the res judicata effect of the said final and conclusive judgment against the Plaintiff, but rather, the owner of the instant land still seeks the ownership registration in its final and conclusive claim against the Plaintiff.

Examining the reasoning of the lower judgment in light of the evidence duly admitted, although the lower court’s reasoning was somewhat insufficient, the lower court’s determination was based on the legal doctrine as seen earlier, and did not err by misapprehending the legal doctrine as to res judicata or abuse of rights, thereby adversely affecting the conclusion of the judgment.

The argument in the grounds of appeal on prescriptive acquisition is a new argument in the final appeal, and thus is not a legitimate ground of appeal.

3. Therefore, all appeals are dismissed, and the costs of appeal are assessed against the party complained against. It is so decided as per Disposition by the assent of all participating Justices on the bench.