[Defendant-Appellee] Plaintiff 1 and 2 others (Law Firm Han, Attorney Kang Jong-chul, Counsel for defendant-appellee)

Defendant (Law Firm White, Attorney Kang Young-chul, Counsel for defendant-appellant)

July 13, 2017

Jeonju District Court Decision 2016Gahap1938 Decided December 23, 2016

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

The defendant will implement the procedure for the registration of ownership transfer for the restoration to the original state due to the cancellation of fraudulent act with respect to each real estate listed in the attached list of the judgment of the court of first instance.

The judgment of the first instance is revoked, and the plaintiff's claim is dismissed.

1. Quotation of judgment of the first instance;

The reasons for this court’s judgment are as follows, except for adding a “additional judgment” under Article 420 of the Civil Procedure Act with regard to the contents added or emphasized by the defendant in the trial as follows. Thus, this court’s reasoning is cited as it is in accordance with the main sentence of Article 420 of the Civil Procedure Act.

○ The part used by the first instance court: to delete the part “as is, through appeal and final appeal,” of the first part of the first part of the fact of recognition of the judgment in the first instance judgment and the part “as is, through appeal and final appeal,” of the last reduction,” and to add [former District Court No. 2011Da4338, Gwangju High Court No. 2012Na1042, Gwangju High Court No. 2012Na1042, Supreme Court No. 201330, 2013Da38480].”

2. Additional determination

A. In light of the fact that the Plaintiff did not take a preservative measure, such as prohibition of disposal, provisional disposition, etc. on each of the instant real estate at the time of the preceding lawsuit, and the Plaintiff thought that the remaining surplus value can be fully repaid even after having known the establishment of the right to collateral security by the Gegim Agricultural Cooperative prior to the closing of argument, and that the Plaintiff maintained the claim for cancellation of registration of ownership transfer registration due to restitution following the revocation of fraudulent act, etc., the prior judgment in the instant case cannot be deemed as being impossible due to an unexpected circumstance, rather than

However, it is difficult to view that the establishment of a limited real right on real estate has been performed by the other party who was requested to return the original real estate before the closure of pleadings even while the lawsuit seeking revocation of fraudulent act is underway. Thus, it is difficult to view that the plaintiff's failure to take a preservative measure during the preceding lawsuit was possible to execute the preceding judgment for such reasons. Meanwhile, according to the evidence evidence Eul, the plaintiff's assertion that "the plaintiff's attempt to return the original real estate in the preceding lawsuit would not necessarily have been repaid if the plaintiff satisfied the value of each real estate in the preceding lawsuit and takes over the remaining surplus value sufficiently after the repayment of the secured debt based on the right to collateral security and the execution of the preceding lawsuit is difficult to conclude that the plaintiff could sufficiently receive the amount of the plaintiff's claim due to such potential economic value as to each of the real estate in this case, and that the plaintiff's assertion that it was unnecessary to conclude that the plaintiff's subsequent claim for the cancellation of the registration of establishment of a real estate was not necessarily necessary in view of the value of the preceding lawsuit's claim for cancellation of ownership."

(b) by inserting the judgment of the first instance court 2-(b)(i) subsequent to the last part of paragraph 6, the same judgment as the second instance shall be added.

In addition, the Supreme Court en banc Decision 9Da37894 Decided 9Da37894 Decided 99 Decided 'if a lawsuit seeking the cancellation of ownership transfer registration' refers to a lawsuit claiming ownership transfer registration based on the restoration of title that has been instituted thereafter. As such, even in a lawsuit claiming the cancellation of ownership transfer registration, it is difficult to conclude that the res judicata effect of the previous lawsuit is effective as a matter of course even in a case where a party who has received a final and conclusive judgment in favor of a party in the lawsuit claiming the cancellation of ownership transfer registration files a lawsuit claiming ownership transfer registration based on the restoration of title on the ground that the judgment is impossible execution. In the former case, it is necessary to conclude that res judicata effect of the previous lawsuit extends to the party who won the final and conclusive judgment, but in the latter case, the subsequent case does not conflict with the other party who won the final and conclusive judgment, and thus, it is a passive meaning that there is no benefit in the protection of rights. In other words, it is reasonable to deem that the plaintiff can bring a lawsuit seeking the cancellation of ownership registration in the final and conclusive judgment.

3. Conclusion

Therefore, the judgment of the court of first instance that accepted the plaintiff's claim is justifiable, and the defendant's appeal is dismissed.

Judges (Presiding Judge)