[1] Whether a claim for compensatory damages is recognized due to impossibility of performance of a claim for real rights (negative)

[2] The case holding that the court below erred in the misapprehension of legal principles, in case where Eul filed a claim against the State for damages against Eul, on the grounds that the ownership transfer registration under Eul et al. was made for a part of the portion of the land for which a registration of ownership preservation has been made in the name of the State; Eul filed a lawsuit seeking cancellation of the registration; Eul had a duty to implement the registration procedure for cancellation of a cause invalidation and the ownership transfer registration under Eul et al. became effective on the ground of completion of prescription for acquisition of ownership transfer registration

[1] [Majority Opinion] In a case where an owner claims the cancellation of registration or the restoration of authentic title against a title holder of a registration that does not fit for an actual relationship based on his/her ownership, such right has the nature of the right to claim the removal of disturbance as a real right claim (Article 214 of the Civil Act). Therefore, if an owner loses ownership thereafter and thus becomes unable to file a claim for cancellation of registration, etc., the said right cannot be said to have the right to claim damages under Article 390 of the Civil Act against the obligor, such as cancellation of registration, on the ground that the realization of the above right became objectively impossible. The right to claim damages for nonperformance of obligations stipulated in the above legal provision is an extension or alteration of the contents of the original right, maintaining its identity in a claim established pursuant to a contract or law. However, if the owner who is the right holder loses ownership, such a right to claim cancellation of registration, etc. is no longer recognized as the basis for the occurrence thereof, and such legal principle itself is no longer changed due to the legal nature of the right to claim cancellation of registration in the preceding lawsuit.

[Concurring Opinion by the Chief Justice of the Supreme Court, Justice Lee Sang-hoon, and Justice Kim Yong-deok] With respect to a claim that is the basis of which the claim is based on, or regardless of whether it is a claim or a real right, recognition of compensatory damages due to nonperformance of the claim is not legally impossible, and it is a decision of legal policy to allow it. As such, the Supreme Court's prior approval of it is reasonable in terms of concrete feasibility, and it seems to be more true in cases where res judicata has occurred through a final and conclusive judgment, and there is no theoretical and practical need to withdraw from the protection of a real right or a real right holder. Accordingly, in a prior suit, in cases where the existence of a duty to implement the procedure for registration of cancellation of ownership preservation, which is the original obligation for payment, is confirmed, it is possible to recognize the liability for compensatory damages due to impossibility of performance or impossibility of execution

[2] In a case where Gap et al. filed a claim against Eul for damages against Eul due to the completion of the prescription period for acquisition of ownership transfer registration in the name of Eul et al., where Eul et al., filed a lawsuit seeking the cancellation of ownership registration under the name of the State, but Eul et al., filed a claim for damages against Eul et al., the case holding that the court below erred in the misapprehension of legal principles and the violation of the disposition principle, inasmuch as it is not possible for Eul et al to claim damages due to nonperformance of the obligation to cancel the registration in the first country, and there is no room to discuss the liability for nonperformance due to nonperformance of the obligation to cancel the registration in the first country, and the liability for damages due to nonperformance of the obligation to compensate for damages due to nonperformance of the obligation to perform the procedure for registration of cancellation of ownership transfer registration, on the grounds that Eul et al., seeking damages due to the loss of ownership cannot be recognized.

[1] Articles 214 and 390 of the Civil Act / [2] Articles 214 and 390 of the Civil Act, Article 203 of the Civil Procedure Act

[1] Supreme Court Decision 2007Da17161 decided Aug. 21, 2008 (amended) Supreme Court Decision 2008Da53638 decided Jun. 11, 2009 (amended)

Plaintiff (Attorney Park Jin-jin, Counsel for the plaintiff-appellant)

Korea

Seoul High Court Decision 2009Na85122 decided March 18, 2010

The part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the Seoul High Court.

The grounds of appeal are examined.

1. The judgment of the court below

A. The facts acknowledged by the court below are as follows.

On June 26, 1974, with respect to the 5,109 square meters of forest land (number omitted) in the Geongsung-gun, the registration of preservation of ownership was made in the Defendant’s future on June 26, 1974, and each registration of ownership transfer was made in the name of Nonparty 1 and Nonparty 2 (hereinafter “ Nonparty 1, etc.”) on the ground of sale as of December 22, 1997, with respect to each of the instant land on December 22, 1997.

In the case (Seoul Central District Court 2008Gahap94375, Apr. 2, 2009) where the Plaintiff filed a claim against the Defendant for cancellation of the above registration of ownership transfer against Nonparty 1, etc. (hereinafter “the above registration of ownership transfer”), the court rendered a ruling of dismissing the claim against the Defendant on Apr. 2, 2009, and the claim against Nonparty 1, etc. against the Defendant. The reason is that “the claim against Nonparty 3, the fleet of the Plaintiff, is presumed to have been assessed against the land, and that the registration of ownership transfer in the name of the Defendant was null and void, the Defendant is obligated to perform the procedure of registration of cancellation.” Meanwhile, as the acquisition by prescription was completed on Jan. 22, 2008 after ten years have passed since the registration of ownership transfer in the name of Nonparty 1, etc. with respect to the land of this case was completed, the final judgment became final and conclusive as follows: “The registration in accordance with the substantive relation of ownership transfer, such as Nonparty 1, etc., is valid.”

B. Next, the lower court determined as follows regarding the Plaintiff’s claim for damages.

According to the above facts, since the registration of preservation of ownership in this case is invalid, the defendant is obligated to implement the registration procedure for cancellation of ownership in this case's land ownership, and since the registration of transfer of ownership in the name of non-party 1, etc. was based on the registration of preservation of ownership in this case's name after the registration of transfer of ownership was completed, the defendant's obligation to perform the registration procedure for cancellation was eventually impossible, as the registration of transfer of ownership in the name of non-party 1, etc. in the preceding lawsuit in this case is recognized as valid on the ground of the completion of prescription. Therefore, the defendant is obligated to compensate the plaintiff for damages caused by non-performance

Furthermore, the defendant's assertion that the defendant did not have any reason, is dismissed for the reasons indicated in its reasoning, and the scope of compensation for damages is that the defendant's obligation to implement the procedure for registration of cancellation of ownership preservation has reached an impossible performance on April 30, 2009, when the judgment against the plaintiff was final and conclusive in the above lawsuit, so the defendant is liable to pay the amount equivalent to the market price of the land at the time

2. However, it is difficult to accept the court below's finding compensation for damages on the ground that the defendant's obligation to perform the registration procedure for cancellation is impossible.

A. In a case where the owner claims the cancellation of registration or the restoration of authentic title against the title holder of a registration that does not fit for the substantive relationship based on his/her ownership, that right has the nature of the claim for exclusion of disturbance as a real right (Article 214 of the Civil Act). Therefore, if the owner loses ownership thereafter and thus becomes unable to file a claim for cancellation of the registration, etc., he/she cannot be said to have the right to claim damages under Article 390 of the Civil Act against the obligor, such as cancellation of registration, on the ground that the realization of the above right became objectively impossible. The right to claim damages on the ground of nonperformance of obligations stipulated in the above legal provision takes place as an extension or alteration of the contents maintaining the identity of the original claim in the relationship of claims established pursuant to the contract or law. However, if the owner loses ownership, the existence of the right to claim cancellation of registration, etc. is no longer recognized as the basis for the occurrence thereof. This legal doctrine does not change due to the legal nature of the right to claim cancellation of the preceding registration in the lawsuit in this case.

Thus, even if the court in the preceding lawsuit of this case held that the defendant is liable to cancel the registration of the plaintiff, and that accepting the plaintiff's claim for cancellation of the registration is inevitable in light of the principle of pleadings, the plaintiff has already lost the ownership of the land of this case due to the completion of the prescription for the acquisition of the register by non-party 1, etc., so the plaintiff can claim damages due to the loss of ownership due to tort, apart from the fact that the plaintiff can claim damages due to non-performance of the defendant's obligation to cancel the registration of this case.

Unlike this, Supreme Court Decisions 2007Da17161 Decided August 21, 2008; 2008Da53638 Decided June 11, 2009, etc. premised on the premise that the compensatory damages claim is recognized due to nonperformance of the right to claim for cancellation registration, which is a real right claim, shall be modified to the extent inconsistent with this Opinion.

B. Meanwhile, the Plaintiff asserted at the complaint to the following purport as the cause of the claim. In other words, the Defendant made a registration of ownership preservation on the instant land owned by the Plaintiff in its own future by unlawful means. After that, the instant land was sold to Nonparty 1, etc. and Nonparty 1, etc. lost the Plaintiff’s ownership by acquiring by prescription the registry. Accordingly, the Plaintiff sought damages for the loss of ownership of the instant land against

On the other hand, the defendant argued that there is no liability for damages arising from a tort since illegality and causes are not recognized in completing the registration of preservation of ownership of this case. In addition, in regard to the defendant's assertion of offsetting negligence, the defendant who committed an intentional tort cannot assert the offsetting of negligence.

According to the above circumstances, it is apparent that the cause of the plaintiff's claim is seeking damages for the loss of ownership due to the defendant's illegal act, and there is no record that the plaintiff changed the cause of the claim thereafter.

Nevertheless, the court below found the plaintiff's cause of claim as damages claim due to "Impossibility of performing the duty to register cancellation of registration procedure" as seen above, and recognized the liability for damages.

C. Therefore, the court below erred by misapprehending the legal principles on compensatory damages due to the impossibility of the performance of the claim as a real right, and by misapprehending the legal principles on the matters not claimed by the parties in violation of the principle of disposition right.

3. Therefore, without examining the remaining grounds of appeal, we reverse the part of the judgment below against the defendant, and remand this part of the case to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices, except there is a separate opinion by the Chief Justice Yang Sung, Justice Lee Sang-hoon, and Justice Kim Yong-deok, and a concurrence with the Majority by Justice Yang Chang-soo

4. Concurrence by the Chief Justice of the Supreme Court, Justice Lee Sang-hoon, and Justice Kim Yong-deok

As to the claim of this case seeking damages due to the loss of ownership, the judgment of the court below is erroneous in violation of the principle of disposition or failing to properly satisfy the reasons for the failure to implement the procedure for registration of cancellation of ownership preservation, and therefore, it is so decided as per the majority opinion as to the fact that the part against the defendant should be reversed.

However, we cannot agree with the Majority Opinion that the lower court’s recognition of compensatory damages due to nonperformance of the right to claim cancellation registration, which is a real right claim, is unlawful for the following reasons.

A. Real rights are exclusive rights with the content of obtaining profits by directly controlling certain and independent objects. Real rights are subject to direct control over objects, and thus does not include claims for performance against others by itself.

However, in the event that the realization of the substance of a real right is being interfered with or is likely to be interfered with due to the act of another person, the right to claim a certain act necessary for the removal or prevention of the disturbance (the act of cancellation or omission) is recognized, that is, the right to claim a real right, and the realization of the real right is guaranteed by such right to claim a real right.

Although a claim based on a real right is derived from a real right and it is recognized that the transfer is prohibited separately from a real right. However, in that it is a right that can claim a certain act toward a certain other party, the basic nature is different from a real right that is subject to control of an object, and its basic nature is different, and it is recognized that it is not the act of a real right itself, but the identity as a right independent from a real right is recognized. In that sense, it is explained that the provisions concerning a claim can be applied

B. Therefore, the question of performance remains if the other party is liable for a certain act or omission by exercising the right to claim a real right against a specific person. In other words, the right to claim is a right to claim a certain act or omission against a specific person. As such, the performance of the right to claim is a right to claim a certain amount of action or omission, regardless of whether the cause of the occurrence is a claim or a real right, and the obligation to perform the act or omission thereof arises. Accordingly, in the case of a claim based on a real right, it shall be deemed that the cause of delay and impossibility of performance of the obligation to perform the obligation may arise as in the case of a claim based on a real right. Accordingly, there is no particular theory that Article 387 of the Civil Act shall apply mutatis mutandis to the delay

For instance, in cases where the infringer, who takes the movable owned by another person, claims the return of the movable, the infringer is obligated to return the movable to the owner, and in reality, it may appear as the duty of delivery of the movable. If the movable is destroyed due to fire, etc., the infringer’s obligation to deliver the movable would lead to nonperformance of the duty of delivery of the movable. The nonperformance of the duty of delivery does not differ from the impossibility of performance of the duty of delivery based on the claim, and there is no need to distinguish the protection of the claimant’s right, such as compensatory damages, and the legal relationship pertaining thereto from the claim

In addition, the same holds true when the ownership of the original owner ceases to exist absolutely due to the loss of ownership, as well as when the ownership belongs to another person, the performance of the obligation to return the ownership and the compensation for transfer thereof can be recognized. The Supreme Court, while understanding all the obligation to register the cancellation of ownership transfer arising from the cancellation of a contract by duress as a real right claim based on ownership and all the obligation to register the cancellation of ownership transfer and the obligation to register the ownership transfer for the restoration of real name as a result of the cancellation of a contract, has taken the above view by allowing compensation for the impossibility of performance of the obligation to register the cancellation (see Supreme Court Decisions 2005Da29474, Sept. 15, 2005; 2007Da51703, Jan. 15, 2009, etc.). In addition, the Supreme Court has consistently declared that if the ownership transfer registration based on the telephone system becomes void due to the cancellation of the protocol, or if an unentitled person has completed the ownership transfer registration by unlawful means, it should be declared 20150.

C. The Majority Opinion appears to the effect that, upon the loss of ownership, a claim based on a real right, which is a means right, has no basis for the occurrence of such a claim, and its existence is no longer recognized, and that there is no impossibility of performing the claim.

However, even in the case of a claim, the claim may be extinguished due to the extinguishment, etc. of the subject matter, but it does not seem to be an interpretation theory denying the performance of the obligation to pay corresponding to the claim regarding the subject matter, or damages based on it. Rather, the compensatory damages for nonperformance shall be granted pursuant to Article 390 of the Civil Act, notwithstanding the extinguishment of the subject matter of payment. This legal doctrine is thought to apply mutatis mutandis to a claim based on a real right similar to a claim, and it is unreasonable to deny the obligation to return the subject matter or its ownership already occurred or the owner lost his/her right, or to deny the nonperformance of the obligation to pay the subject matter or its ownership due to the extinguishment of the subject matter of payment.

In a case where an owner loses ownership by transferring the object owned by a third party in a situation where the ownership is interfered with the actual control and management of the object owned by the owner, the new owner is required to seek the prohibition or prevention of interference with the exercise of his/her ownership, and therefore, it is not necessary to maintain the right to seek the prohibition or prevention of such interference or obligations corresponding thereto (see, e.g., Supreme Court en banc Decision 68Da725, May 27, 1969).

However, in a case where the possession or registration of an object is transferred to a third party due to the act of the infringer, and the ownership of the original owner is extinguished, the need for the former owner to claim the return of the ownership of the object is not considered to have been lost solely on the ground that such ownership was lost. The right to claim the return of the ownership of the object is based on the ownership, but the right to claim the return of the ownership may be recognized as independent claim as seen earlier, and as such, the right to claim the return of the ownership may be recognized as independent of the ownership, it does not necessarily mean that the extinction of the ownership and the seizure of the ownership are the same if the right to claim the return of the ownership occurred. Rather, if it is not possible for the infringer to acquire the ownership again and return the ownership to the former owner, it is reasonable in terms of the detailed nature of the real right or the protection of the right, and the right to claim the return of the possession or registration can be effective at this time. As can be seen, even if the infringer is ultimately unable to perform his/her obligation due to the cause attributable to him/her, notwithstanding having been fulfilled his/her duty of obligation.

D. In this light, it is unnecessary to grasp the concept of loss of ownership and impossibility of performing the obligation to return ownership.

In a case where ownership belongs to a third party and is relatively extinguished due to an act committed by the infringer, in terms of a tort, ownership shall be deemed to have been lost in terms of a tort. However, in terms of the duty to return an object, the infringer shall continue to acquire ownership again from a third party and return it to the original owner. However, in a case where a lawsuit against a third party is invalidated, such as cancellation of the registration filed against the third party, and the possibility of performance is completely denied, it is possible to interpret that the obligation is not performed, and it is possible to recognize compensatory damages as at the time of nonperformance, and such view has been adopted (see, e.g., Supreme Court Decisions 2005Da29474, Sept. 15, 2005; 2007Da17161, Aug. 21, 2008; 2007Da3645, Jun. 12, 2008; 2007Da5375, Jul. 15, 20015).

E. According to the Majority Opinion, compensatory damages due to nonperformance of a real right claim are entirely impossible, and only a claim for damages due to tort, such as loss of ownership, can be filed.

(1) Generally, the compensatory liability due to nonperformance and the liability for damages due to tort are separate and mutually complementary systems different from the requirements thereof. The most fundamental method of protection against infringement on ownership is to restore the infringed ownership to the original state, and the liability is insufficient to protect the person holding a real right solely with respect to monetary compensation. Here, there is a substantial ground for recognizing a real right claim claiming the return of ownership, and furthermore, to restore the ownership to the original state. In other words, in a case where the return of ownership is impossible, it is necessary to recognize compensatory compensation in lieu of the right to claim the return or the duty to return the ownership, separate from tort liability

In addition, the liability for compensatory damages caused by nonperformance of obligation bears the burden of proving the absence of cause attributable to the obligor in accordance with the legal principles on liability for nonperformance, while the claimant in principle bears the burden of proving the cause attributable to the other party. In addition, the ten-year statute of limitations is applied to compensatory damages caused by nonperformance of obligation, as in general claims, while the ten-year statute of limitations is applied to compensatory damages caused by tort, the short-term statute of limitations is applied to the damages

In light of this, the claim for damages caused by a tort can be more unfavorable than seeking compensatory damages due to the impossibility of the performance of the claim as a real right. Accordingly, the claim for damages itself may not be acknowledged as a result of failure to prove the requirements of the tort or extinction by prescription. As such, the claim for damages by a tort is insufficient to protect the real owner. In the case of Supreme Court Decision 2005Da29474 Decided September 15, 2005, supra, in fact, the claim for damages caused by a tort was rejected due to the lapse of the extinctive prescription period, while the claim for compensatory damages due to the impossibility of the performance of the obligation to register the cancellation of ownership based on the real right claim was accepted, and thus the real owner could be relieved.

Since a real right is an exclusive and absolute right and has a large effect, it is much stronger than a claim, and a real right claim is also recognized as a broad protection of a real right. Nevertheless, if a compensatory liability recognized as the validity of a claim is denied from a real right claim in the real right claim, it would rather be more neglected to protect a real right than a claim.

Therefore, as in the case of a real right claim, there is a need to recognize a compensatory liability arising from the impossibility of performance of a real right claim, apart from the tort liability due to the loss of a real right itself.

(2) In addition, in cases where the loss of ownership and the impossibility of performing the duty to return the owned property are different as seen earlier, the time of loss of ownership and the time of impossibility of performing the duty may vary, and thus, the starting point of the statute of limitations or the starting point of the amount of damages are different. Therefore, whether to recognize compensatory damages due to impossibility of performing the duty to return

In the meantime, the Supreme Court has interpreted the concept of non-performance of the claim and its point of time faithfully to the protection of creditors, and it has been interpreted by expanding the legal principle to the claim as a real right, thereby recognizing compensatory damages in lieu of the ownership at the time of impossibility of performance or execution. This seems to be due to the fact that the liability for damages caused by a tort is not sufficient to protect the owner.

Even though only the claim for damages due to the loss of ownership is allowed as the majority opinion, it may be presented that the time of the occurrence of the damage is not regarded as the time of the loss of ownership in order to protect the owner, but can be seen as the time of the conclusion of the judgment of the loss of ownership in the previous precedents similar to the time of the loss of ownership. However, regardless of the loss of ownership, it is questionable whether it would be possible in legal principles as to whether the loss of ownership is substantially impossible until the time of the judgment of the loss of ownership or the time of the occurrence of the loss. Rather, maintaining the interpretation of allowing compensation for the loss due to the impossibility of performance

(3) Furthermore, in a case where a creditor files a claim for the registration of ownership transfer of real estate on behalf of the claimant for performance (the claim for performance) and files a lawsuit for monetary payment on the premise of the existence of the claim for performance on the premise of the original claim for performance, the subject claim is deemed a claim for compensatory damages in advance in preparation for a case where the performance becomes impossible before the judgment becomes final and conclusive or where the execution becomes impossible after the judgment becomes final and conclusive, and the subject claim has been handled equally (see Supreme Court Decisions 2005Da39013, Jan. 27, 2006; 2011Da30666, 30673, Aug. 18, 201). As such, the subject claim recognized in the precedent is based on the impossibility or impossibility of performance of the obligation on the premise of the original claim for performance, and it seems that the claim for compensatory damages arising from the tort that starts from the performance claim for performance is different from its nature.

However, if the performance of a claim based on a real right is denied as in the majority opinion, a claim based on a real right cannot be permitted. Ultimately, unlike the case of a claim for registration of transfer of ownership, a claim for registration of cancellation, which is a claim based on a real right, there is no way to execute compensatory damages immediately at the time of impossibility of performance or in the event of impossibility of execution or in the event of impossibility of execution with the judgment on compensatory damages together with the judgment on the claim for registration of cancellation, and it is questionable whether it is reasonable to treat a claim based on a real right as a large right and a claim based on a real right as such more disadvantageously unfavorable than in the case of a claim.

F. In particular, it is necessary to pay attention to the claim that res judicata has occurred as a result of the claim for registration cancellation, which is an issue of compensatory damages due to nonperformance in the instant case, which became final and conclusive in the instant prior suit.

Even if the plaintiff's ownership has already been lost due to the completion of the statute of limitations in the preceding lawsuit of this case, since the judgment in favor of the plaintiff on the right to claim cancellation registration of this case, which is a real right claim against the defendant, has become final and conclusive in the preceding lawsuit of this case, the defendant in the lawsuit of this case cannot assert the non-existence or extinction of the right to claim cancellation registration on the ground of the extinguishment of ownership, which is the reason arising before the closing of argument. The judgment based on the final and conclusive judgment of the previous lawsuit of this case, where the legal relationship with the res judicata effect of the previous lawsuit of this case becomes the first issue in the subsequent lawsuit even though it is not the subject of the subsequent lawsuit, is the first issue in the subsequent lawsuit of this case (see Supreme Court Decisions 94Da4684 delivered on Dec. 27, 1994; 200Da41349 delivered on Nov. 16, 201; 93Da2905 delivered on Nov. 13, 2001).

However, if the execution of the judgment is impossible and the compensation for damages is denied, it would be recognized that the non-existence or extinction of the right to claim the cancellation of registration of this case, which should be interrupted by res judicata effect, would result in a violation of the general theory on res judicata in civil litigation.

G. In conclusion, it is not legally impossible to recognize compensatory damages for claims that have already been established regardless of whether the rights that form the basis of the claim are claims or real rights, and whether to allow such claims or not is a matter of law and policy decision. Therefore, the Supreme Court's prior opinion to protect the real rights that are not available for claims is proper in terms of concrete feasibility, in cases where res judicata has occurred through a final and conclusive judgment, it seems more true in terms of specific validity, and in cases where res judicata has occurred through a final and conclusive judgment, and there is no theoretical and practical need to withdraw from the protection of the real rights holder or the real rights holder for a long time.

Therefore, in the preceding lawsuit of this case, since the obligation to perform the registration procedure for cancellation of registration of cancellation of ownership preservation, which is the original obligation for payment, has become final and conclusive, it is possible to recognize the liability for compensation due to the impossibility of performance or non-execution, and the part of the judgment of the court below that held to the same purport is just and it cannot be

For the same reason, I agree with the conclusion of the majority opinion, but express my separate opinion as to the argument.

5. Concurrence with the Majority by Justice Yang Chang-soo

As for the right to claim cancellation of a real right registration, I express my opinion in supplement of the Majority Opinion with regard to the separate opinion that the compensatory damages claim should be recognized on the ground of nonperformance.

A. The issue is that the provision on the convenience of claims is applied mutatis mutandis to a real right claim, unless it is contrary to the nature of the right of claim. The problem is whether the provision on the convenience of claims should not be applied mutatis mutandis specifically to a real right claim, and if the provision on the liability for nonperformance on the ground of impossibility of performance should be individually expressed in this case, it is "whether the provision on the liability for nonperformance on the ground of impossibility of performance is applied mutatis mutandis to a real right claim." The Majority Opinion states that the application mutatis mutandis is not permissible against the nature of a real right claim. Thus, the problem is not resolved only by the above general explanation as to the provision on

B. The Concurring Opinion states that “a claim may, even in the case of a claim, be extinguished due to the cause, such as the extinguishment of the claim, but it does not seem to be an interpretation interpretation that denies the performance of the obligation to pay corresponding to the claim on the subject matter, and rather, compensation for the impossibility of performance of the obligation to pay damages is allowed pursuant to Article 390 of the Civil Act, regardless of the extinguishment of the subject matter of payment.” This legal doctrine states that “The claim for the right to claim a real right can be applied mutatis mutandis as it is,” and it is logical and inevitable to deny the obligation to return the subject matter or the ownership already occurred due to the extinguishment of the subject matter of the right to claim a real right or the loss of the owner’s right to claim a real right and the impossibility of performance thereof.” (Article 4.3).

However, in a sales contract, even if the seller’s liability for transfer of ownership or delivery was lost, that alone does not immediately extinguish the seller’s liability for the transfer of ownership or delivery. As long as the buyer is liable for nonperformance due to nonperformance of his/her obligation, such obligation still remains. A claim is the core for a creditor to “request” performance of performance of payment, and is compared with the ownership and other real rights that have already been attributed to the owner or any other property holder. Accordingly, in cases where the obligor fails to perform his/her obligation under a claim relationship, if the obligor fails to perform his/her obligation, it would achieve the property status, i.e., where the obligor has performed his/her obligation properly, requiring the obligee to realize his/her obligation in an economic and content consistent with the original meaning, that is, where the obligor has performed his/her obligation, it would be the right to claim damages on the ground of nonperformance as provided for in Article 390 of the Civil Act. Accordingly, in cases of nonperformance, this is premised on the existence of the obligation.

The existence of such obligation is clearly revealed when the buyer, who is the obligee, selects the rescission of the contract with the different content of the liability for nonperformance. In this case, only when the buyer expresses his intent of rescission of the contract, the sales contract becomes null and void, and thereby the seller’s obligation becomes null and void together with the buyer’s payment obligation. In other words, the seller’s obligation continues to exist despite the loss of the object, and the effect of rescission is extinguished only when the seller expresses his/her intent of rescission of the contract as above.

However, a claim for exclusion of disturbance and other real rights claims (hereinafter referred to as “the right to claim ownership only before discussion”) are entitled to a claim against the owner for removal of disturbance in a case where the owner is unable to enjoy all profits concerning the object legally reverted to him/her. In other words, a claim for infringement of real rights is a means of protecting rights to ensure the objective realization of the state of interference with ownership. In other words, even though a claim for removal of disturbance is in the form of such phenomenon, it appears in the form of a claim for removal of interference with the owner, but its core is not different from the second claim for protection if it is recognized as an act of ownership in the state of interference with its realization. In that sense, in the sense of the right to claim extension of the “material interest protection” guaranteed by ownership, the claim regulating relations with persons with the owner is different from the claim for payment based on the basic orientation. Therefore, where the owner loses his/her ownership, it is immediately extinguished if it is not necessary to recognize it, and it is also the same as the case where the article is terminated or extinguished by an example.

If a thing is destroyed, the ownership of the thing shall be terminated immediately. The term "control", the core of ownership, is based on the premise that the thing is subject to the ownership, and ownership without the subject matter is the order of appearance. Since a real right claim is recognized for the smooth realization of ownership, there is no reason for existence of a real right claim, unless there is ownership. This is no reason for existence of a real right right right. This is the case of so-called relative extinction, such as where ownership of the thing is absolutely extinguished as the loss of the thing, as well as where ownership of the thing is transferred to a third party and the previous owner loses its ownership. There is no room for doubt as to this point of view by the Supreme Court en banc Decision 68Da725 Decided May 27, 1969.

Therefore, even if the owner of a real estate has a right to claim cancellation of the registration against the title holder of the defective ownership based on the ownership, that is, a right to claim cancellation of the registration as a right to claim cancellation of the ownership, if he/she no longer has the ownership, his/her right to claim cancellation of the registration immediately becomes extinct. Such right to claim cancellation of the registration naturally results in the nature of the right to claim cancellation of the ownership from the “right to claim from the ownership,” i.e., the right to claim the right to claim cancellation of the registration, which is a means to achieve the smooth realization of

As can be seen, the right to claim cancellation of the registration due to the loss of ownership is extinguished, or the subject matter of the sales contract is destroyed, or the seller’s obligation, such as transfer of ownership, becomes impossible to perform the seller’s obligation by transferring it to a third party, and the seller is no longer legally responsible for compensating the buyer for transfer of ownership, etc. As such, the obligation to cancel the registration is lost rather than “Impossibility of performance,” and thus becomes no longer the basis of the obligation is lost. This is even if the illegal possessor bears the duty to deliver the subject matter to the owner, and transferred possession to a third party, and he cannot deliver it to the owner any longer, the obligation to return the subject matter (see Article 213 of the Civil Act) is merely null and void, and there is no room to discuss the responsibility for default of compensation for transfer of ownership. As such, the obligation to compensate for damages (Article 390 of the Civil Act) for nonperformance on account of impossibility of performance of the obligation is contrary to the nature of the right to claim a real right. Therefore, Article 390 of the Civil Act cannot apply mutatis mutandis.

C. Regarding the case of the so-called relative extinction of ownership as seen earlier, the Concurring Opinion does not require that “in the event the ownership is terminated as a result of the transfer of possession or registration to a third party due to the act of infringement, the previous owner’s right to claim the return of possession or registration title on the owned property is lost, solely on the ground that such ownership is lost. The right to claim the return of possession or registration title on the owned property is based on ownership, but its identity may be acknowledged as independent of ownership as seen earlier, as seen earlier. As such, once the right to claim the return has occurred, it does not necessarily mean that the extinction of ownership is the same as that of the previous owner. Rather, if it is not possible for the infringer to obtain the ownership again and return the ownership to the previous owner, the obligation to return is reasonable in terms of the detailed nature of the real right or the protection of the right, and the right to claim the return of possession or registration title can be invalidated when the ownership has been lost (the foregoing part of the last part of April 3).

However, with respect to the seller who bears the obligation such as transfer of ownership from the beginning to a third party, he/she may again acquire the ownership transferred to a third party for the performance of his/her obligation and demand the buyer to transfer it (see the main sentence of Article 570 of the Civil Act). However, on the ground that such obligation was possessed without any such obligation, the owner is merely the other party to the claim for transfer, and there is no ground to require the former owner to obtain the return of possession from the person who is not the other party to the claim for return by transferring the possession to a third party. The former owner is seeking the delivery of the object against the current illegal occupant, and if he/she wishes to avoid the repetition of the lawsuit, it is sufficient to devise other remedy such as the prohibition of transfer of possession.

D. Furthermore, the Concurring Opinion states that a real right is more strong than a claim, and that “If a compensatory liability recognized as the validity of a claim is denied from a real right claim, it would rather be difficult to understand by treating the protection of a real right more neglected than a claim.”

(1) However, “the compensatory liability recognized as the validity of the claim” is recognized only in relation to the debtor.

It is basically based on the detailed effect that ownership and other real rights are more strong than claims. Accordingly, an owner may, in principle, enforce his/her legal authority on anyone in principle, and if a person who infringes or is likely to infringe his/her rights is entitled to seek the smooth realization of ownership in principle, a creditor may also demand the exclusion or prevention of the disturbance against anyone who is in question. However, when his/her claim is not fully realized, that is, when his/her claim is not fully realized, a creditor may demand the compulsory realization of the claim and the responsibility for default only on the part of the debtor, and as a matter of principle, with respect to a third party who is not the debtor, a third party who infringes or is likely to infringe on his/her rights cannot demand the exclusion or prevention of the disturbance unless there are other special circumstances.

On the other hand, in relation to an obligor 1, a creditor has various legal powers, including compulsory realization of an obligation (Article 389 of the Civil Act), compensation for damages (Article 390 of the Civil Act), and cancellation of a contract (Article 544 of the Civil Act), in a case where a claim is not fully realized due to his/her nonperformance of obligation (Article 389 of the Civil Act). It is difficult to readily conclude whether the legal authority of the owner with respect to the actual obstructor may be said to be more serious than the legal authority of the obligor. It is rather strong in that the proof of the cause attributable to the Concurring Opinion or the period of extinctive prescription, etc. should be deemed to be more strong.

(2) The issue here is not different, but rather whether to recognize the remedy for nonperformance, such as compensatory damages, due to nonperformance of the obligation, which is recognized only for one debtor, in order to make a real right claim that is affirmed against the arbitr, based on the detailed competence of ownership as above.

In addition, the problem should be negative, and if a real right claim is extinguished due to the loss of ownership, etc., in principle, the former owner should be held liable for tort generally permitted for the reasons explained earlier. Above all, recognizing special legal remedies recognized only in relation to an obligor to a person who did not have a claim relationship is a harsh result in the mere fact that there was a temporary and objective infringement of ownership. This is the most important reason for the denial of compensatory liability due to nonperformance of performance in the case of this case. In addition, it is the most important reason for the substantive reason for the denial of compensatory liability due to nonperformance of performance. In addition, the reason for the above negative answer is as seen earlier.

E. As suggested by the Concurring Opinion, I think that the claim under substantive law, such as the Supreme Court Decision 92Da4581 Decided May 12, 1992, should be denied on the ground that the claim under a real right should be denied on the ground that the claim under a real right should be denied for the same reason as the claim under a compensatory damages based on the impossibility of performance.

In addition, the Concurring Opinion has recognized that the right to claim for cancellation registration as a real right claim has been recognized, that is, the right to claim for cancellation registration, which is the original right to claim for cancellation registration, has recognized a precedent that combines the claim for monetary payment such as the right to claim for damages in preparation for the impossibility

However, as mentioned in the Concurring Opinion, the so-called “a claim” as mentioned above has been discussed in entirely different ways from the issues discussed in this case, and basically, such form of a claim has been discussed mainly based on whether a lawsuit is permitted. Moreover, since the Supreme Court Decision 75Da450 Decided July 22, 1975, Supreme Court Decision 2005Da39013 Decided January 27, 2006, Supreme Court Decision 2005Da39013 Decided January 27, 2006, it is consistent and it is well known that the Supreme Court has consistently taken the attitude of allowing the consolidation of current and future claims related to registration, namely, current registration, and future claims for monetary payment. In addition, although the specific legal meaning of the claim for monetary payment due to the “Impossibility of performance” or “Impossibility of execution,” as a real right claim, from the perspective of the majority opinion, the claim for cancellation of registration as a real right claim and the claim for damages due to tort is not permitted as a simple merger.

Therefore, according to the Majority Opinion, we cannot agree with the Majority Opinion to readily conclude that the “subject claim” as a form of combination of claims cannot be permissible as to a real right claim.

F. In addition, the Concurring Opinion argues that since the ruling authorizing the plaintiff's right to claim cancellation registration in the preceding lawsuit of this case became final and conclusive and the res judicata has occurred in relation thereto, it is reasonable in legal principles to allow compensatory damages due to the plaintiff's loss against the non-party 1 and others, making it impossible to enforce the final and conclusive judgment substantially due to the plaintiff's failure to execute the judgment and the damages caused thereby, this would result in recognizing the non-existence or extinction of the right to claim cancellation registration of this case which should be interrupted by res judicata effect, and thus, it would result in a violation of the general theory on res judicata effect in civil litigation (refer to the above 4. f.).

(1) However, according to firm precedents and common theories, res judicata of a final and conclusive judgment rendered against the defendant in the preceding lawsuit of this case is to have the effect of litigation law. According to this, res judicata is solely effective under the Civil Procedure Act, and it is understood that it is irrelevant to the legal relationship of substantive law. In other words, a final and conclusive judgment is not allowed for a court to make a decision inconsistent with this Opinion in a separate lawsuit for the unification of a judgment of a trial agency.

Therefore, even if the Plaintiff obtained a final and conclusive judgment against the Defendant regarding his claim for cancellation registration in the preceding lawsuit of this case, the legal nature of the Plaintiff’s claim for cancellation registration does not change as a claim for cancellation registration based on the relationship of claims, for instance, if the legal nature of the right to claim cancellation registration does not change as a claim for cancellation registration based on the relationship of claims. Moreover, even if it is based on the premise of claims, the claim for damages arising from nonperformance of certain obligations differs from the claim for performance of the obligation itself, and as such, even if the existence of the obligation in the prior lawsuit of this case becomes final and conclusive

Therefore, the above final and conclusive judgment does not require that the plaintiff has a right to claim compensation pursuant to Article 390 of the Civil Act on the ground that the right to claim for registration of cancellation is impossible. Determination as to whether a right to claim for compensation is recognized is beyond the scope of res judicata in which the final and conclusive judgment of the preceding lawsuit has become final and conclusive. The separate opinion argues that the majority opinion stated that “the foregoing argument is contrary to the general theory on res judicata in civil procedure,” but rather, is contrary to the general theory on res judicata in civil procedure.

(2) From a substantial standpoint, the argument such as the Concurring Opinion is unreasonable.

Of course, the Plaintiff’s right to claim for cancellation of registration against the Defendant was recognized by a final judgment in the preceding lawsuit of this case. However, this should not be recognized. The Plaintiff already lost ownership of the instant real estate at the time of closing argument at the fact-finding court of the instant preceding lawsuit. Therefore, in substantive law, the Plaintiff did not have the right to claim for cancellation registration against the Defendant based on ownership. Therefore, if the Defendant asserted this point in the preceding lawsuit of this case, the Plaintiff did not win the lawsuit against the Defendant (see Supreme Court Decision 94Da7348, Mar. 3, 1995, which immediately decided to the same purport and dismissed the Plaintiff’s claim). This final judgment was final and conclusive (see Supreme Court Decision 90Da9872, Apr. 12, 1991; Supreme Court Decision 90Da9872, Apr. 12, 1991; Supreme Court Decision 90Da9872, Apr. 12, 199).

Therefore, it cannot be questionable whether “the Defendant is obliged to register the cancellation, and further has the obligation to accept the execution of the final judgment” merely with the fact that he obtained a final judgment on the right to claim the cancellation of registration against the Defendant (the same as seen earlier) can be said to be reasonable in light of the legal principles as follows: “It is reasonable to allow the compensatory damages due to the Plaintiff’s loss against Nonparty 1, etc., making it impossible to enforce the final judgment substantially due to the Plaintiff’s failure to enforce the final judgment.”

G. Meanwhile, in a case where the right to claim for cancellation of ownership transfer registration based on ownership is sought due to the cancellation of a contract made by duress, etc. or a lawsuit telephone, the separate opinion states that the Supreme Court has consistently allowed compensatory damages on the ground that the right to claim for cancellation registration based on ownership was impossible (the last sentence part of the above 4.B.). However, in the case where the contract, etc. which caused the registration was cancelled by duress, etc., if the former owner had done the registration of ownership transfer based on the said contract, it is possible to return the ownership as well as to make it based on ownership if the former owner had done the registration of ownership transfer based on the said contract, etc., but apart from this, even if the former owner did not complete the registration of ownership transfer, the right to claim restitution based on the right to claim for cancellation of ownership transfer registration based on the contract, etc. is not clearly established as a right to claim for cancellation of ownership based on the previous Supreme Court en banc Decision 193Da139354 Decided September 13, 1983.

Justices Yang Sung-tae (Presiding Justice)