[1] Where a retrial case is dismissed for reasons after the closing of argument in the judgment subject to retrial, the standard time of res judicata (=the time of closing of argument in the judgment subject to retrial)

[2] In a case where the subject matter of a prior suit is the right to claim the transfer of ownership, whether the person who received the transfer of ownership of the subject matter after the closing of argument in the prior suit constitutes a successor after the closing

[3] Requirements for a claim for ownership transfer registration for the restoration of real name, and whether a person who did not have ownership registration in his/her future and who did not acquire ownership under the law can file a claim for ownership transfer registration for the restoration of real name against the present registered titleholder by subrogation of the owner (negative)

[4] Whether it is legitimate for a creditor to exercise a creditor's subrogation right in a case where a judgment against a creditor against a debtor becomes final and conclusive (negative)

[1] Even if the court recognizes that there exist grounds for retrial in a retrial case, if it dismisses the request for retrial on the grounds after the closing of argument in the judgment subject to retrial, the standard time of res judicata is not at the time of closing of argument in the judgment subject

[2] Where the subject matter of a prior suit is a claim for ownership transfer registration, the person who received the ownership transfer registration of the subject matter after the closing of argument in the prior suit shall not be deemed a successor after the closing of argument.

[3] A claim for registration of transfer of ownership for the restoration of the true title of registration is sought for the restoration of the true title of registration based on ownership in lieu of seeking the cancellation of the registration against the current title holder who was registered under his/her own name or acquired the ownership under the law. Thus, in cases where a person who did not have the ownership registered in his/her own name in his/her future and who did not acquire the ownership under the law can file a claim for the cancellation of the registration with the current title holder on behalf of the title holder, a claim for registration of transfer of ownership

[4] If a creditor files a lawsuit against the debtor for the performance of the procedure for ownership transfer registration and the final and conclusive judgment against the debtor is rendered, the creditor cannot file a claim for ownership transfer registration with the debtor any longer due to res judicata of the final and conclusive judgment in the creditor subrogation lawsuit that exercises the debtor's right to a third party. Therefore, the creditor subrogation lawsuit seeking the preservation of such right is unlawful because it

[1] Article 460 of the Civil Procedure Act / [2] Article 218 of the Civil Procedure Act / [3] Article 186 of the Civil Act / [4] Article 404 of the Civil Act, Article 216 of the

[1] [2/4] Supreme Court Decision 92Da25151 delivered on February 12, 1993 (Gong1993Sang, 966) / [1] Supreme Court Decision 80Da2217 delivered on November 25, 1980 (Gong1981, 13405) / [3] Supreme Court Decision 96Da47142 delivered on March 11, 1997 (Gong197Sang, 1060), Supreme Court Decision 2002Da41435 delivered on January 10, 2003 (Gong203Sang, 621) / [4] Supreme Court Decision 200Da5171 delivered on May 10, 202

Plaintiff (Attorney Lee Yong-hoon et al., Counsel for the plaintiff-appellant)

Defendant 1 and one other (Attorney Jin-hun, Counsel for the defendant-appellant)

Jeonju District Court Decision 2001Na6391 delivered on October 17, 2002

1. Of the judgment below, the part concerning the claim for cancellation of the registration of transfer of ownership against Defendant 1 concerning the claim for implementation of the procedure for cancellation of the registration of transfer of ownership is reversed, and that part of the judgment of the court of first instance is revoked, and the lawsuit on the corresponding part is dismissed. 2. The remaining grounds of appeal are dismissed.

1. The facts duly established by the court below are as follows.

A. On March 1, 1971, the Plaintiff purchased the instant land from Nonparty 1, and developed part of that land (hereinafter referred to as “the instant land portion”) as a site, and he stockpiled cement block fence on the boundary line, and used it as a public bottle storage, etc.

B. On August 17, 1994, Defendant 2 filed a lawsuit against the Plaintiff on the ground that the land in this case was owned by the Plaintiff and sought its transfer, and the Plaintiff filed a counterclaim against the Plaintiff on September 14, 1994 for the implementation of the procedure for registration of transfer of ownership on the ground of prescriptive acquisition. The first instance court accepted the Plaintiff’s appeal against the principal lawsuit, rejected the counterclaim, and dismissed the Plaintiff’s appeal against the principal lawsuit. The Supreme Court accepted the Plaintiff’s appeal against the principal lawsuit on May 28, 1997, reversed and remanded the part concerning the principal lawsuit, dismissed the Plaintiff’s appeal against the counterclaim, and the second instance maintained the first instance judgment, which was the Plaintiff’s claim for transfer of land by dismissing the Plaintiff’s appeal, and the Supreme Court reversed the Plaintiff’s appeal against the principal lawsuit on February 16, 1998.

C. After that, the Plaintiff brought a lawsuit for a retrial against each of the above judgments of the second instance on the grounds of a final and conclusive judgment of conviction by Nonparty 2, who was a witness of the first instance trial, and the court rendered a final and conclusive judgment on August 19, 199. However, the court dismissed the claim for a counterclaim on the grounds that the ownership of the land of this case was transferred to Defendant 1 on September 21, 1998. Although the prescriptive prescription was completed for the counterclaim claim, the judgment subject to a retrial was dismissed on the grounds that it was justifiable in the outcome of the judgment subject to a retrial as Defendant 2’s obligation to transfer ownership over Defendant 1’s ownership was impossible after the judgment was completed, and the judgment became final

2. After finding the above facts, the court below acknowledged the plaintiff in this case that the plaintiff sought the implementation of the procedure for the registration of ownership transfer concerning the part of the land of this case against the defendant 2, and on the premise that the plaintiff's right to claim the registration of ownership transfer was made, the plaintiff can be asserted prior to the closing of argument, and thus, the plaintiff's claim for the registration of ownership transfer against the defendant 2 cannot be accepted as the plaintiff's claim for the registration of ownership transfer against the defendant 2 because the plaintiff's right to claim the cancellation of the wall and the transfer of the part of the land of this case is invalid on the ground that the contract was made contrary to social order or the removal of the above wall and the transfer of the part of the land of this case are made on the ground that the above cancellation procedure was implemented and selectively completed on the ground that the plaintiff's claim for the registration of ownership transfer is invalid on the ground that the plaintiff's claim for the registration of ownership transfer against the defendant 2 cannot be accepted as the plaintiff's claim for the registration of ownership transfer against the defendant 1 and the judgment of this case.

3. A. First of all, the judgment of the court below that the claim against Defendant 2 is identical to the counterclaim in the lawsuit for a retrial, and thus, the judgment of the court below that the final judgment has res judicata effect on the final judgment. There is no error as alleged in the grounds for

B. However, even if the existence of the Plaintiff’s right to claim for ownership transfer registration against Defendant 2, who was the object of the judgment in the previous case, becomes a preliminary question in this case where the Plaintiff’s right to claim ownership transfer registration against Defendant 1 on behalf of Defendant 2, seeking implementation of the procedure for ownership transfer registration or the procedure for ownership transfer registration based on ownership transfer registration, which was due to the cancellation of ownership transfer registration, in principle, against Defendant 1, the res judicata effect of the final and conclusive judgment does not extend to Defendant 1, whose judgment of res judicata effect is different, unless there are special circumstances such as the parties’ successor

The court below held that since Defendant 1 constitutes a successor after the closing of argument in the judgment subject to a retrial and thus res judicata extends to Defendant 1, Defendant 1. However, even if Defendant 1 received the registration of ownership transfer from Defendant 2 who was a counterclaim after the closing of argument in the judgment subject to a retrial, if the court dismisses the request for a retrial on the grounds after the closing of argument in the judgment subject to a retrial, the standard time of res judicata is not only the time of closing of argument in the judgment subject to a retrial but also the time of closing of argument in the judgment subject to a retrial (see Supreme Court Decision 92Da25151 delivered on February 12, 1993) but also the time of closing of argument in the judgment subject to a retrial (see Supreme Court Decision 80Da2217 delivered on November 25, 1980). Thus, even if Defendant 1 received the registration of ownership transfer from Defendant 2, who was a counterclaim in the previous trial, it is difficult to accept this part of the judgment below.

However, a claim for registration of transfer of ownership for the restoration of real name is filed in its own name, or a genuine owner who has acquired ownership by law seeks the restoration of the real name based on ownership in lieu of seeking the cancellation of the registration against the current registered titleholder (see Supreme Court Decision 96Da47142, Mar. 11, 1997). Thus, in a case where a person who did not have ownership registration in his own name and who did not acquire ownership by law can file a claim for the cancellation of the registration on behalf of the current registered titleholder on behalf of the owner, only if he/she is able to file a claim for the cancellation of the registration on behalf of the owner (see Supreme Court Decision 2002Da41435, Jan. 10, 2003).

In the same purport, the court below's decision that the plaintiff's request for ownership transfer registration based on the restoration of the plaintiff's title to the defendant 1 is correct, and there is no error as alleged in the grounds of appeal, and as long as this decision is correct, the above error of the court below's decision as to the defendant 1 did not affect the judgment.

C. In addition, the court below's dismissal of the plaintiff's request for removal of fence against the defendant 1 and the request for removal of the part of the land of this case is justified, and there is no error as alleged in the grounds of appeal, and the court below's rejection of the claim based on possessor'

4. Meanwhile, the court below's dismissal of the plaintiff's claim against defendant 1 for the implementation of the procedure for cancellation of ownership transfer registration by subrogation of defendant 2 cannot be accepted for the following reasons.

If a creditor files a lawsuit against a debtor to perform the procedure for transferring ownership and obtains a final and conclusive judgment against a debtor, the creditor cannot file a claim for the transfer registration of ownership with the debtor any longer due to res judicata of the final and conclusive judgment in the creditor subrogation lawsuit that exercises the debtor's right to a third party, and thus, the creditor subrogation lawsuit to preserve such right is unlawful (see Supreme Court Decision 2000Da55171, May 10, 2002).

In this case, the purpose of the previous lawsuit claiming ownership transfer registration against Defendant 2 and the right to preserve the creditor subrogation lawsuit against Defendant 1, who the Plaintiff subrogated Defendant 2, is the same as the right to claim ownership transfer registration based on the completion of the prescriptive acquisition as of March 1, 1991.

Therefore, the plaintiff cannot file a claim for ownership transfer registration with the same cause of claim against the defendant 2 due to res judicata of the above final judgment. Thus, the creditor subrogation lawsuit against the defendant 1, who exercises the right of subrogation against the defendant 2 for the purpose of preserving the right, is unlawful.

Nevertheless, the lower court erred by misapprehending the legal doctrine on creditor subrogation lawsuit, thereby adversely affecting the conclusion of the judgment.

5. Therefore, among the judgment of the court below, the part on the claim for the cancellation of the ownership transfer registration against Defendant 1 concerning the execution of the procedure for cancelling the ownership transfer registration shall be reversed, and the judgment of the court of first instance concerning that part shall be revoked, the lawsuit concerning that corresponding part shall be dismissed for the same reason as seen earlier,

Justices Zwon (Presiding Justice)