The case holding that it does not conflict with the res judicata of a final and conclusive judgment;

The registration of transfer of ownership in the name of the defendant in the previous suit is null and void because it was made by the defendant by forging related documents or in violation of the provisions of Articles 607 and 608 of the Civil Act. If it is not so, at the same time, a claim for cancellation of the above real estate registration was made at the same time, and the claim for cancellation of the above real estate registration was made at the same time, the above registration was made by the subsequent suit as a weak security for the principal amount of KRW 350,000, and the above registration was extinguished after the closing of argument in the final judgment. If the plaintiff asserts that the above registration was extinguished because the defendant had a duty to cancel the above registration after the completion of argument in the final judgment, it is a new circumstance that occurred after the date of closing of argument in the final judgment, and thus, the subsequent suit does not conflict with the res judicata

Article 505 of the Civil Procedure Act

Plaintiff (Attorney Seosan et al., Counsel for the plaintiff-appellant)

Defendant 1 and two others (Attorney Lee Jae-soo, Counsel for the defendant-appellant)

January 16, 1970

Seoul Civil District Court Decision 67Da9001 delivered on May 28, 1968

(1) Revocation of the original judgment shall be revoked.

(2) Defendant 1 against the Plaintiff: (a) on August 29, 1961, he received from the Seoul Central District Court No. 27671, Aug. 28, 1961; (b) on Oct. 23, 1964, on Oct. 23, 1964, on the ownership transfer registration for the reason of partition of common property as No. 32280, Oct. 24, 1964; and (c) on Dec. 15, 1960, on Dec. 14, 1960, on Dec. 37435, 196; (b) on Dec. 16, 196, on each of the above real property, he received the ownership transfer registration for the reason of sale on Nov. 10, 1960; and (c) on Dec. 16, 1966, he received the ownership transfer registration for each of the above real property from the court.

(3) The total costs of the lawsuit shall be borne by the Defendants.

The plaintiff is seeking a judgment as ordered by the court.

1. Determination on this safety defense

Defendant 1 claimed the same counterclaim against Defendant 1 in Seoul Civil District Court 62Da3757 decided 62Ga7825, Seoul High Court 63Na860 decided against Defendant 1, but the judgment was ruled against the above Seoul High Court, which became final and conclusive due to the failure to file a final appeal within the period of final appeal, and thus, the Plaintiff’s claim against Defendant 1 against Defendant 1 is unlawful as it goes against the res judicata effect of the above final and conclusive judgment.

If Gap evidence Nos. 2 and Eul evidence Nos. 1-2, which have no dispute over the establishment of a public nature, gather the whole purport of the pleading in the statement No. 1-2, which is presumed to have been established, and if the plaintiff asserts as the cause of claim in the above counter-claim claim case, the registration of each of the registrations in the name of defendant No. 1 against each of the above real estate which the plaintiff raised against the defendant No. 1 and lost, is invalid first. Second, even if it is not so, it is invalid due to a security contract against the above defendant No. 607 and No. 608 of the Civil Code. Third, if the above assertion is groundless, it is obvious that defendant No. 1 should receive 340,000 won as the secured claim on the above real estate and cancel each of the above registrations, and considering the plaintiff's claim against the above defendant No. 1, the plaintiff's claim against the above defendant No. 300 of the set-off claim against each of the above real estate after the above set-off claim against each of the above defendant No.

Therefore, even if the plaintiff's claim for return of unjust enrichment (i.e., automatic claim) which the plaintiff declared a set-off had already occurred before the date of the closing of argument in the above final judgment, and the plaintiff did not have been able to make a set-off declaration even after the date of the closing of argument, it cannot be deemed as a new circumstance that occurred after the date of closing of argument in the above final judgment. Thus, the plaintiff's claim against the defendant 1 against the defendant 1 does not conflict with the res judicata effect of the final judgment. Therefore, the above defendant's claim for objection to safety cannot be accepted (see Supreme Court Decision 66Da780, Jun. 8, 196) and 2.

(1) 위 갑2호증, 을1호증의 1, 2, 성립에 다툼이 없는 갑1호증의 1, 2(각 등기부등본), 공성부분의 성립에 다툼이 없으므로 진정성립이 추정되는 을2호증(환지증명)의 각 기재와 성립에 다툼이 없는 을9호증(피의자신문조서), 을24호증(피신청인 신문조서)의 각 일부기재에 변론의 전취지를 모아보면, 서울 중구 초동 (지번 1 생략) 대 18평 5홉(이하 본건 대지라 부른다)은 원래 귀속재산이던 같은 동 (지번 2 생략) 대 196평 1홉(환지전표시)중 일부로서 원고가 관재당국으로부터 임차 사용중인 대지였고, 그 지상 목조와즙 2계건 점포 1동 건평 12평 5홉 외 2계평 12평 5홉(이하 본건 건물이라 부른다)은 원고 이름으로 등기를 마친 원고소유의 건물이었던 사실, 원고는 1960.11.14. 경 피고 1로부터 금 200,000원을, 이자 월8푼, 변제기 1961.3.15.의 약정 아래 차용함에 있어서 본건 건물을 담보로 제공하여 피고 1 앞으로 1960.11.14. 서울민사지방법원 접수 제37435호로서 1960.11.10. 매매를 원인으로 하는 소유권이전등기를 경유하여주고, 다시 원고는 1961.1.14.경 피고 1로부터 금 150,000원을 이자 월8푼, 변제기 1961.3.15.의 약정이래 차용함에 있어서 당시 원고가 관재당국으로부터 임차 사용중이던 본건 대지를 장차 원고가 불하받아 원고 앞으로 소유권이전등기를 마친뒤 피고 1 앞으로 역시 담보를 위하여 소유권이전등기를 하여 주기로 하는 담보계약을 맺은 사실, 그 뒤 본건 대지는 원고 이름으로 불하받아 대금을 완납하고 1961.8.29. 원고 앞으로 소유권이전등기를 경유한 뒤(다만 당시 18평 5홉이라는 특정부분이 분할되어 있지 아니한 관계로 편의상 위 같은 동 (지번 2 생략) 대 196평 1홉에 대한 21.5/196.1지분 이전등기를 하였음) 위 담보계약에 따라 피고 1 앞으로 1961.8.29.위 법원 접수 27671호로서 1961.8.28.매매를 원인으로 하는 위 지분권 이전등기를 경유하여 준 사실, 그 뒤 1963.7.15.경 위 동 (지번 2 생략) 대 196평 1홉이 같은 동 (지번 3 생략) 대 18평 5홉, 같은 동 (지번 4 생략) 대 101평 2홉, 같은 동 (지번 5 생략) 대 38평 4홉 등 3필지로 환지확정이 되었는 바, 위와 같이 원고가 불하받은 뒤 피고 1에게 소유권이전을 한 본건 대지는 환지확정된 위동 (지번 3 생략) 대 18평 5홉으로 되었으므로 피고 1은 1964.10.23. 위 법원 접수 제32280호로서 1964.10.5.공유물 분할을 원인으로 이에 대하여 단독 소유권 등기를 하기에 이른 사실(위 공유물 분할은 진정한 의미의 공유물 분할이 아니고 원래부터 환지전 같은 동 (지번 2 생략) 대 196평 1홉중 각자 특정부분을 소유하면서 편의상 지분권등기를 가지고 있던 사람들이 환지확정으로 각자 소유부분이 분할등기가 되자 그 부분에 각자 단독소유권등기를 하기 위하여 편의상 취한 것이다), 원고와 피고 1 사이의 위 담보계약의 내용은 위 채무변제기의 도과와 더불어 위 건물과 대지에 대한 소유권이 확정적으로 피고 1에게 이전된다는 것이 아니라 변제기가 지난뒤라도 원고가 채무의 원리금을 위 피고에게 변제하면 위 피고는 위 각 소유권이전등기를 말소하여 주기로 하는 이른바 약한 의미의 양도담보계약인 사실, 피고 1은 1962년경 원고를 상대로 서울민사지방법원 62가3757호 로서 본건 건물의 명도 청구소송을 제기하여 1963.9.17. 위 법원으로부터 피고 1(그 사건 원고)승소의 가집행 선고부 판결을 받아 1963.9.25. 본건 건물의 명도집행을 완료하였는바, 그 뒤 위 가옥명도 청구 사건은 항소심인 서울고등법원에서 피고 1 이름의 본건 건물에 대한 소유권이전등기는 약한 의미의 양도담보의 목적으로 된 것에 지나지 아니하며 피고 1은 본건 건물의 실질적 소유자로 볼 수 없다는 이유로 원판결을 취소하고, 피고 1의 청구를 기각하는 판결이 선고되었으며 뒤에 대법원에서 위 고등법원 판결이 확정된 사실, 피고 1은 위 가집행에 의하여 명도받은 본건 건물을 원고에게 반환치 않고 점유하고 있다가 위 건물과 대지에 관하여 1965.9.20. 위 법원 접수 22761호로서 1965.7.20. 매매를 원인으로 하는 각 소유권이전등기를 피고 2에게 경유하여준 사실 및 피고 2는 본건 건물과 대지에 관하여 1966.12.29.위 법원 접수 36094호로서 1966.12.26. 매매예약에 인한 소유권이전청구권 보존을 원인으로 하는 각 가등기를 피고 3에게 경유하여 준 사실을 각각 인정할 수 있고 을4호증(가옥임대차계약서), 을5호증(약정서), 을6호증(화해신청), 을7호증(화해조서), 을12호증의 1, 2(각 영수증)의 각 기재는 위 인정을 좌우할만한 자료가 된다고 볼 수 없고 달리 반증이 없다.

(2) The plaintiff's assertion

The registration in the name of Defendant 1 as to the building site and building of this case is, like the above recognition, a weak meaning of the Plaintiff’s obligation to the above Defendant as KRW 350,00,00, and the Plaintiff repaid 32,000 to the above Defendant with interest on the above obligation on May 28, 1961. Although the above Defendant had a duty to cancel the registration of this case upon full repayment of the remainder of the principal and interest of this case, as seen earlier, Defendant 1 asserted that the Plaintiff had ownership of the building as above, and filed a lawsuit against the Plaintiff on the title of the building and filed a provisional execution order until September 25, 1963, and thereafter illegally occupied the building. Since the Plaintiff occupied the building of this case by unlawful possession of the above Defendant, the Plaintiff’s claim for unjust enrichment was delivered to the Defendant for set-off against the above Defendant 1’s claim for restitution of the remainder of this case’s obligation by set-off against the Defendant 1’s claim for restitution of unjust enrichment by the rate of 9.7.

Nevertheless, Defendant 1 did not cancel each registration of this case's real estate, and did so through the registration of ownership transfer such as the above recognition because he pretended to trade the building and site of this case with Defendant 2 for the purpose of evading this registration. Accordingly, each registration passed through Defendant 2 is null and void, and each provisional registration made in Defendant 3 on this basis is null and void, and the defendants examine this dispute.

(3) Determination as to the assertion of disguised sale

Inasmuch as there is no dispute over the establishment of the official portion, if Defendant 1’s receipt, Nonparty 1’s written statement, Nonparty 2’s written statement, Nonparty 1’s written statement, Nonparty 3, 4, and 5’s testimony as to the non-party 4’s testimony, and Defendant 1’s whole purport of the oral argument, Defendant 2 cannot return this case’s real estate to the Plaintiff where the above-mentioned house name case was closed against the Supreme Court on July 20, 1965, and the Plaintiff was sold from the Plaintiff on July 28, 1967, and Defendant 1’s written statement was transferred to others, Nonparty 1’s written statement, Nonparty 1’s written statement, Nonparty 1’s written statement, Nonparty 2’s written statement, and Nonparty 2’s written statement, and Defendant 1 and Nonparty 2’s written statement, Defendant 2, as the result of Nonparty 2’s examination were removed, and Defendant 1 and Nonparty 2’s written statement, Defendant 1 and Nonparty 5’s co-6’s written statement.

(4) Judgment on the Plaintiff’s assertion of interest payment

In light of the above Gap evidence (judgment) and the purport of the oral argument, the plaintiff can be acknowledged to have paid 32,00 won to defendant 1 as the principal of this case. Thus, this shall not be deemed to have been appropriated to the defendant 1 for 2 months (til January 13, 1961) according to the rate of 8% per annum, which is the agreement on the loan of 200,000 won from November 14, 1960, unless there are special circumstances, and it shall not be deemed to have been appropriated to the interest rate of 20,000 won per annum until May 31, 1961. Thus, the plaintiff shall not be deemed to have been appropriated to the above interest rate of 350,000 won per annum and the interest rate of 350,000 won per annum from January 14, 1961.

(5) Judgment as to the plaintiff's allegation of offset

First, as seen above, Defendant 1 continued to occupy the above building even after its provisional execution had been revoked by the High Court, and thus, it should be returned to the Plaintiff without any legal cause. As such, Defendant 1 first asserted that the above building was the right to occupy and use the building based on ownership between the above Defendant and the Plaintiff prior to the settlement of February 8, 1961 between the above Defendant and the Plaintiff, and thus, it cannot be recognized that the right to use the building was acquired as the right to use the building after the date of closing the argument. Second, Defendant 1 had the right to acquire the object of transfer from the obligor and dispose of it, even if it was a mortgagee, and thus, Defendant 1 cannot be viewed as being entitled to acquire the right to use the building as the right to use the building after the date of closing the argument, and thus, Defendant 1 cannot be viewed to have acquired the right to use the building as the right to use the building as the right to use the building by acquiring the right to use the building as the right to use the building and to dispose of it after the due date.

Therefore, I will examine the plaintiff's claim for restitution of unjust enrichment as automatic claim, and examine the plaintiff's claim for set-off with the principal and interest of the transferred collateral claim as passive claim.

(A) According to Gap evidence Nos. 3 (Peremptory Notice) presumed to have arrived at the recipient due to the lack of dispute over the establishment of the public portion, the plaintiff, on July 28, 1965, declared that the above defendant 1, who occupied and used the above building from Sep. 25, 1963 to Aug. 25, 1965, obtained unjust enrichment from the above defendant's possession and use of the above building, shall be added to 27,500 won per month, and the above statement of intent shall offset the principal and interest of this building by the above amount to the above day on or around July 28, 1965.

However, the plaintiff's claim for rent of 27,50 won per month for the above 196.2 billion won per annum from 196.1 to 196.2 billion won per annum for the above 196.3 billion won per annum for the above 196.3 billion won per annum for the above 196.3 billion won per annum for the above 196.3 billion won per annum for the above 196.3 billion won per annum for the above 196.4 billion won per annum for the above 196.3 billion won per annum for the above 196.4 billion won per annum for the above 196.3 billion won per annum for the above 196.1 billion won per annum for the above 196.3 billion won per annum for the above 196.4 billion won per annum for the above 196.3 billion won per annum for the defendant's claim for rent of 196.3 billion won to 196.4 billion won per annum for the above 196.196.3 billion won per annum

(B) The plaintiff expressed his/her intent to offset the principal and interest of the defendant 1 with the above claim for return of unjust enrichment accrued from January 7, 1970 to December 31, 1969 and delivered the above legal brief to the above defendant 1. The above appraiser's appraisal result shows that 23,875 (1,910 x 12.5 x 16.5) 26,50 (2,125 x 12.5 x 12.5 97) . 196, 29, 29, 300 won (2,360 x 2,360 x 1965 x 1965 x 1965 x 1963 96. 196) . 196, 1969

(C) Defendant 1 asserted that, in addition to the principal and interest of the above bonds, Defendant 1 paid 13,897 won in arrears with water supply charges, 32,00 won in expenses for registration of ownership transfer, 24,000 won in acquisition tax, and 59,000 won in expenses paid to Nonparty 9,10 who moved into the building of this case with security deposit money, and that the above offset does not fully terminate the Defendant’s claim. Thus, according to the evidence evidence No. 25, the above Defendant paid 7,000 won in acquisition tax for the building of this case, and 17,000 won in acquisition tax for the building of this case, and 32,000 won in expenses for registration of ownership transfer of 17,000 won in acquisition tax for the building of this case, the above Defendant paid 56,000 won in expenses with interest payment for the above money, but it cannot be found that the above Defendant’s assertion was not accepted as evidence supporting the above facts.

(6) Conclusion

Thus, as long as the Plaintiff’s obligation against Defendant 1, who transferred the building and the site, was fully paid out, Defendant 1 is obligated to cancel each of the above registrations on the building site and the building site, and Defendant 2 is obligated to cancel each of the above registrations of transfer of ownership on the top of the above real estate passed through without any cause. In addition, Defendant 3 is obligated to cancel the provisional registration that was stated above based on the registration of invalidity of cause as above.

Therefore, since the plaintiff's claim for the principal lawsuit is to be duly accepted, the original judgment with different conclusions has been revoked unfairly, and the total costs of the lawsuit are to be borne by the losing defendant and to be decided as per Disposition.

Judges Lee Tae-sung (Presiding Judge)