[1] Whether res judicata effect of the previous suit extends to the subsequent suit in a prior suit seeking registration of cancellation and in a subsequent suit where the grounds for the invalidation of cause are identical (affirmative)

[2] In a case where the judgment accepting the Plaintiff’s claim was rendered and confirmed on the ground that the Plaintiff’s claim was a sole heir in the previous suit, and that it constitutes a co-inheritors, whether res judicata effect of the previous suit extends to the subsequent suit seeking confirmation of ownership of the remainder of the inherited property acquired by the Plaintiff through an agreement on the division of inherited property after the closing of argument in the previous suit (negative)

[1] The subject matter of the claim for cancellation registration is the claim for cancellation registration in question and the cause of the claim, namely, the cause of the claim for cancellation registration, which serves as the basis for determination of identity, is deemed to be null and void. If the cause of the claim for cancellation registration is the same as that of the registration in the name of the defendant in the previous suit and the subsequent suit, the subject matter of the lawsuit is identical, and the claim in the subsequent suit is not permissible as it goes against the res judicata effect of the final and

[2] Since the subject matter of the claim for confirmation of ownership is the existence of ownership itself, even though the judgment against the Plaintiff was finalized after the Plaintiff’s assertion of ownership in the previous suit, if the ownership was newly acquired after the closing of argument in the previous suit, res judicata in the previous suit cannot affect the subsequent suit seeking confirmation of ownership. If the agreement on division of inherited property was concluded after the closing of argument in the previous suit, even if the inheritance became effective after the commencement of inheritance, acquisition of ownership through the agreement on division of inherited property constitutes a cause arising after the closing of argument in the previous suit. Therefore, if the judgment was finalized after the Plaintiff accepted the Plaintiff’s claim and dismissed the remainder of the claim on the ground that the Plaintiff’s claim was asserted as a sole heir in the previous suit but was seeking confirmation of ownership, the res judicata in the previous suit does not extend to the subsequent suit seeking confirmation of ownership concerning the remaining shares

[1] Article 216(1) of the Civil Procedure Act / [2] Article 216(1) of the Civil Procedure Act, Article 1015 of the Civil Act

[1] Supreme Court Decision 93Da11050 delivered on June 29, 1993 (Gong1993Ha, 2138)

Plaintiff (Attorney converted to Plaintiff, Counsel for the plaintiff-appellant)

Korea

Seoul Central District Court Decision 2010Na45219 Decided February 15, 2011

The judgment of the court below is reversed, and the case is remanded to the Seoul Central District Court Panel Division.

The grounds of appeal are examined.

1. A. Comprehensively taking account of the admitted evidence by the lower court, the following facts are revealed.

1) The Plaintiff: (a) participated by Nonparty 1 in the Seoul Central District Court case No. 2007Na32886, the appellate court of the lawsuit filed against the Defendant for the cancellation of registration of preservation of ownership of each of the lands (hereinafter “each of the lands of this case”); and (b) sought confirmation of ownership against Nonparty 1; and (c) cancellation of registration of preservation of ownership of each of the lands of this case against the Defendant on May 1, 2008 on the ground that there was no evidence to prove that the Plaintiff is the owner of each of the lands of this case, which was the appellate court of the lawsuit; and (d) the Plaintiff independently succeeded to each of the lands of this case from the deceased Nonparty 2; and (e) sought cancellation of registration of preservation of ownership under the name of the Defendant as to each of the lands of this case, respectively; (e) on May 24,

2) Afterwards, the Plaintiff filed a claim suit against the Defendant, such as the Seoul Central District Court 2009Gahap53128, which filed for the registration of cancellation of registration of ownership preservation, and sought confirmation of ownership of each of the instant land. On January 15, 2010, the Plaintiff winning the lawsuit regarding the Plaintiff’s share of 1/3 of the Plaintiff’s share out of each of the instant land, and the remaining 2/3 shares became final and conclusive on February 10, 2010.

3) Accordingly, on April 9, 2010, the Plaintiff filed a lawsuit of this case against the Defendant again seeking cancellation of registration of ownership preservation in the name of the Defendant or confirmation of the Plaintiff’s ownership ownership ownership ownership ownership ownership, on the ground that the Plaintiff, on the grounds that the Plaintiff, with the remaining co-inheritors of the deceased Nonparty 2, and the Plaintiff, as a sole heir with respect to the inherited property of the deceased Nonparty 2, had agreed on the division of inherited property.

B. According to the reasoning of the judgment below, the court below determined that the claim for cancellation of registration of ownership preservation or the claim for confirmation of ownership of 2/3 shares out of each of the lands of this case that the plaintiff selected, is identical to each of the above lawsuits in which the judgment became final and conclusive, and that the division of inherited property by agreement takes effect retroactively from the time the inheritance commenced, and thus, the selective claim of this case cannot be deemed to conflict with the res judicata of the previous suit

2. However, we cannot agree with the judgment of the court below that the claim for confirmation of ownership in this case conflicts with the res judicata of the judgment in the previous suit for the following reasons.

A. The subject matter of the claim for cancellation registration is the claim for cancellation registration in question and the cause of the claim that serves as the basis for determining its identity, that is, the cause of the claim for cancellation registration in question is invalid (see Supreme Court Decision 93Da11050 delivered on June 29, 1993, etc.). If the cause of the registration in the name of the defendant in the previous and subsequent suit is the same as that of the invalidation of the cause of the registration in the previous and subsequent suit, the previous and subsequent suit claiming for cancellation registration are identical to the subject matter of the lawsuit, and the assertion in the subsequent suit cannot be allowed as it conflicts with the res judicata effect

On the other hand, in the case of a claim for confirmation of ownership, the subject matter of the lawsuit is the existence of ownership itself. Even though the judgment against the plaintiff was finalized after the plaintiff's assertion of ownership in the previous lawsuit, if the ownership was newly acquired after the closing of argument in the previous lawsuit, res judicata in the previous lawsuit cannot affect the subsequent lawsuit seeking confirmation of ownership. If the agreement on division of inherited property was concluded after the closing of argument in the previous lawsuit, even if the effect of the agreement on division of inherited property was commenced retroactively to the commencement of inheritance, acquisition of ownership through the agreement on division of inherited property shall be deemed to constitute a cause arising after the closing of argument in the previous lawsuit. Therefore, if the plaintiff asserted as a sole heir in the previous lawsuit and sought confirmation of ownership, but the judgment dismissing the remainder of the claim becomes final and conclusive, the res judicata in the previous lawsuit shall not extend to the subsequent lawsuit seeking confirmation of ownership concerning the remaining shares acquired by the plaintiff through

B. Nevertheless, the court below determined that the claim for the confirmation of ownership in this case conflicts with the res judicata effect of the claim for the confirmation of ownership, which is a prior suit, based on its reasoning as stated in its holding. The court below erred by misapprehending the legal principles on res judicata effect of the claim for the confirmation of ownership and the effect

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Nung-hwan (Presiding Justice)