[1] The meaning of "legal compatibility" in preliminary or selective co-litigation

[2] The nature of the lawsuit in a preliminary or selective co-litigation only pertaining to the claims filed against a part of co-litigants (=a judgment with defects) and whether the co-litigants omitted have the benefit of filing an appeal (affirmative)

[1] Article 70(1) of the Civil Procedure Act / [2] Article 70(1) and (2) of the Civil Procedure Act

[1] Supreme Court Order 2007Ma515 dated June 26, 2007 (Gong2007Ha, 1133)

Plaintiff

Defendant

Daejeon District Court Decision 2004Na12088 Decided July 22, 2005

1. The judgment of the court of first instance is reversed and the judgment is revoked.

A. As to the share of 15/48 of the real estate listed in the separate sheet to the Plaintiff (Appointed Party);

(1) Defendant 2: (a) the registration of transfer of ownership that was completed on September 10, 2002 by the Geumsan District Court of Daejeon District Court No. 11775; (b)

(2) Defendant (Appointed Party) 2 shall implement the registration procedure for the establishment of a neighboring mortgage and the cancellation of registration procedure, which was completed on September 10, 2002 by the same registry office No. 11776.

B. The part on Defendant 3 and 4 among the remaining main claims of Plaintiff (Appointed Party) and the conjunctive claims by Plaintiff (Appointed Party) are all dismissed.

2. Of the total litigation cost, the part arising between the Plaintiff (Appointed) and the Defendant (Appointed Party) and the Defendant (Appointed Party) and the Defendant 2 shall be borne by the Defendant (Appointed Party), the Defendant 2, and the remainder by the Plaintiff (Appointed Party). The portion arising between the Plaintiff (Appointed Party) and the Defendant 3 and the Defendant 4 shall be borne by the Plaintiff (Appointed Party).

We examine the grounds of appeal.

1. As to the main claim

In the judgment on the defense before the merits, the court below held that the main claim of this case is different from the case of Daejeon District Court 9Na9330, which became final and conclusive, and thus does not conflict with the res judicata of the above final and conclusive judgment. In light of the records, such judgment of the court below is just, and there is no error of law by misapprehending the legal principles on res judicata of the final and conclusive judgment, as otherwise alleged in the grounds of appeal

In addition, based on the facts established by the court below comprehensively taking into account the adopted evidence, the transfer of the ownership of the real estate in this case to Defendant 2 (hereinafter “Defendant 2”) and Defendant 3 and 4 (hereinafter “Defendant 2, etc.”) as stated in its reasoning is deemed null and void as it constitutes a juristic act against social order as it is a breach of trust committed by the other party’s active participation. As to the registration of ownership transfer made on the ground of such anti-social order juristic act and the right to cancel the registration of ownership transfer made on the basis of such anti-social order and the right to claim the cancellation of the ownership registration of the neighboring mortgage registered on the basis of this case’s primary claim by the Plaintiff (Appointed Party and hereinafter “Plaintiff”) against the Defendant, etc., the court below cited it within the scope of the preserved right as stated in its reasoning. In light of the records, the judgment of the court below is just and acceptable, and there is no error in the misapprehension of legal principles as alleged in the grounds for appeal, as otherwise alleged in the grounds for appeal.

2. As to the conjunctive claim

With respect to the preliminary claim, the first instance court rejected the Defendant's appeal against the preliminary claim, citing the reasoning for the preliminary claim as follows: (a) the primary claim is the form of a lawsuit seeking a trial against the preliminary claim under the condition that the conjunctive claim is accepted (the first instance court stated that it is “defluence or dismissal,” but appears to be a clerical error); (b) the primary claim in this case was actually accepted; (c) the lower court did not make any decision as to the preliminary claim in this case; and (d) citing the reasoning for the preliminary claim in the first instance judgment, the lower court dismissed the Defendant's appeal against

However, such judgment of the court below is hard to accept.

In a preliminary or selective co-litigation under Article 70(1) of the Civil Procedure Act, “legal compatibility” means, unlike a different evaluation of the same factual basis, where the legal effect of either of the two claims is acknowledged, and the legal effect of either of the two claims is denied, and thus both claims cannot be accepted, or where either of the two claims is acknowledged or denied by a fact-finding or by a selective fact-finding that constitutes the cause of the claim, and thereby, would result in an objection to denying or affirming the legal effect of the other claim. In such a case, it is reasonable to view that the two claims include not only the relationship in which the determination process of each claim is necessarily mutually combined because the grounds for the judgment of the other claim affect the other claim, but also the case in which the legal effect of the other claim is not compatible (see Supreme Court Order 2007Ma515, Jun. 26, 2007).

Meanwhile, Article 70(2) of the Civil Procedure Act provides that a judgment shall be rendered on the claims related to all co-litigants in preliminary or selective co-litigations under Article 70(1) of the same Act. Thus, in such co-litigations, where a judgment is rendered only on the claims related to a part of co-litigants, this constitutes a judgment with a defect other than a partial judgment, and it should be contested by an appeal, and the co-litigants omitted in such judgment shall be entitled to file an appeal in order

According to the records, although the defendant et al. bears the duty to transfer the ownership of the real estate of this case to the plaintiff et al., the transfer of ownership to the plaintiff et al. to the defendant 2 constitutes a conspiracy, false representation, or a juristic act contrary to social order, and the plaintiff et al. seeks the registration of ownership transfer and the cancellation of the establishment of a neighboring mortgage registration made under the name of the plaintiff et al. on behalf of the defendant et al...... The preliminary claim of this case was rejected if the plaintiff et al.'s claim of this case was rejected as to a juristic act contrary to social order, the obligation to transfer ownership transfer registration against the plaintiff et al. was in the status of non-performance. In light of the legal principles as seen earlier, the reason for each claim of this case is affected by the conclusion of the conjunctive claim as to the non-performance of the conjunctive claim, and thus the above two claims cannot be legally compatible, and the conjunctive claim of this case is a preliminary claim and the other party as a whole, and the lawsuit of this case constitutes a preparatory claim of this case as prescribed in the Civil Procedure Act.

Therefore, in this case where the primary claim is substantially accepted, there is no reason to believe that there is no preliminary claim that is legally incompatible, and thus, it is necessary to render a judgment to dismiss it pursuant to Article 70(2) of the Civil Procedure Act. However, the court below erred by misapprehending the legal principles as to preliminary co-litigation and failing to make any judgment as to the preliminary claim, thereby adversely affecting the conclusion of the judgment. The ground of appeal assigning this error is with merit.

3. Conclusion

Therefore, the judgment of the court below shall be reversed, and since this case is sufficient for the court to render a direct judgment, it shall be decided to render a self-determination in accordance with Article 437 of the Civil Procedure Act. The reason why this court shall explain the part concerning the defense prior to the merits and the main claim is the same as the corresponding part of the judgment of the court of first instance, and therefore, it shall be

Therefore, as long as the plaintiff's primary claim is justified within the scope of recognition of the first instance court, and as long as the main claim is accepted in substance as seen above, there is no reason to make any conjunctive claim that cannot be legally compatible, the judgment of the first instance that differs from this conclusion is unfair, and partly accepted the main claim of the plaintiff, etc., and the remaining main claim and the plaintiff's conjunctive claim are dismissed as to the defendant 3 and 4. It is so decided as per Disposition by the assent of all participating Justices on the bench.

[Attachment] Indication of Real Estate: (Omission)

Justices Kim Nung-hwan (Presiding Justice)