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

Korea

January 25, 2011

Seoul Central District Court Decision 2010Kadan151649 Decided October 14, 2010

1. The plaintiff's appeal is dismissed.

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

The judgment of the first instance court is revoked. Alternatively, the defendant confirms that each procedure for cancellation of registration of cancellation of registration of ownership preservation completed on November 28, 1960 with respect to 2/3 shares of each of the lands listed in the separate sheet is owned by the plaintiff, or that each of 2/3 shares of each of the lands listed in the separate sheet is owned by the plaintiff among each land listed in the separate sheet.

1. Basic facts

A. The plaintiff participated in the appellate court of a lawsuit against the defendant for the cancellation of registration of preservation of ownership of each of the lands listed in the separate sheet (hereinafter referred to as "each of the lands of this case") against the defendant, and requested the defendant to cancel registration of preservation of ownership of each of the lands of this case on the ground that each of the lands of this case was owned by him. However, on May 1, 2008, the plaintiff was sentenced to the judgment against the defendant (Seoul Central District Court Decision 2007Na3286, 2008Na1107 (Intervention)) and the above judgment became final and conclusive on May 24, 2008.

B. In other words, the Plaintiff filed a lawsuit against the Defendant seeking confirmation that each of the instant lands was owned by the Plaintiff (Seoul Central District Court 2009Gahap53128), and the said court rendered a favorable judgment against the Plaintiff on January 15, 2010 regarding the Plaintiff’s share of 1/3 out of each of the instant lands, but rendered a judgment against the Plaintiff regarding the remainder 2/3 shares, and the said judgment became final and conclusive on February 10, 2010 (hereinafter collectively referred to as “each previous lawsuit”).

【Ground of recognition】 Evidence No. 6, Evidence No. 1, and the purport of the whole pleadings

2. The assertion and judgment

Under the premise that the Plaintiff is the owner of 2/3 shares in each of the instant land, the Plaintiff sought the cancellation of each of the instant shares against the Defendant, who is the titleholder of the registration, or seek the confirmation of ownership.

In each of the previous lawsuits against the defendant, the plaintiff's right to file for registration of cancellation of ownership preservation on the whole land of this case and the plaintiff's judgment against the plaintiff to the effect that there is no ownership on 2/3 share out of each of the land of this case is affirmed. The plaintiff's right to file for registration of cancellation of ownership preservation on the whole land of this case and the claim for cancellation of registration of cancellation of ownership or claim for ownership confirmation on the 2/3 share out of each of the land of this case which the plaintiff seeks selectively shall be the same lawsuit between the previous lawsuit and the parties. Thus, in accordance with the res judicata effect of the above final judgment, the court of subsequent suit shall be bound

As to this, the Plaintiff asserts to the effect that the judgment of each of the previous lawsuits was limited to one-third of each of the lands in this case, and that the Plaintiff was the sole heir of each of the lands in this case through a consultation on the division of inherited property on April 9, 2010, which was after the final judgment of each of the previous lawsuits, and that as to the 2/3 shares newly acquired through the said consultation on division, they do not conflict with the res judicata effect of the final judgment in each previous lawsuit,

On the other hand, according to the plaintiff's assertion that the subject matter of the previous lawsuit is the whole land of this case as seen earlier, and that the agreement on division of inherited property is the reason newly occurred after the closing of argument, the plaintiff sought cancellation of registration or confirmation of ownership on the whole land of this case on the premise that the plaintiff is the sole owner of the whole land of this case by inheritance, and the division of inherited property takes effect retroactively at the time of the commencement of the inheritance (Article 1015 of the Civil Act). If the division of inherited property as the plaintiff's argument does not conflict with the res judicata in view of the change of circumstances after the closing of argument, the effect of the judgment can be denied as an agreement between private parties, and this result in excluding the intent of res judicata that prohibits contradiction or repetition. In light of the above, all of the above arguments of the plaintiff cannot be accepted.

3. Conclusion

Therefore, each of the plaintiff's claims in this case shall be dismissed in accordance with the res judicata of a final and conclusive judgment against each of the previous lawsuits. Since the part concerning the claim for cancellation of registration of ownership preservation is just in conclusion, this part of the appeal by the plaintiff shall be dismissed as it is without merit. The part concerning the claim for confirmation of ownership in the judgment of the first instance which dismissed the lawsuit in the judgment of the second instance is unfair in conclusion, but only the plaintiff appealed the judgment of the first instance which was unfavorable to the plaintiff who is the appellant under the principle of prohibition of disadvantageous change in this case, and thus it cannot be decided to dismiss the plaintiff's appeal. Accordingly, only the plaintiff's appeal shall be dismissed. It

[Attachment]

Judges Jin-hun (Presiding Judge)