2011°266 Implementation of procedures for ownership transfer registration

LA

Attorney Lee Gyeong-hoon, Counsel for the defendant-appellant

1. B;

2. The person taking over the lawsuit of the deceased C;

A. Kim D.

(b) Optional;

(c) Forestry;

(d) G.

Defendant B, D or D’s legal representative, parent KimD

[Plaintiff-Appellant] Plaintiff 1 and 1 other

Attorney Kim Young-gu, Kim Jong-chul, Kim Jong-sung

December 11, 2012

May 14, 2013

1. Of the real estate listed in paragraph (1) of the attached Table No. 1 of the instant lawsuit, the part of the instant lawsuit (D) which successively connects each point of (a) part of 520 meters connected to each point of (a) of the attached Table No. 1, 2, 3, 10, 11, and 1 of the attached Table No. 12, 13, 14, 25, 26, 27, and 12 of the same drawings among the real estate listed in paragraph (2) of the attached Table No. 1 of the attached Table No. 1 of the instant lawsuit is dismissed.

2. The plaintiff's remaining main claims and conjunctive claims are all dismissed.

3. The costs of lawsuit shall be borne by the Plaintiff.

Claim for the old prop-oriented claim: The Defendants will implement the registration procedure for transfer of ownership with respect to each real estate listed in the separate sheet to the Plaintiff.

Preliminary claim: The Defendants will implement the registration procedure for ownership transfer on March 29, 2004 with respect to each real estate listed in the separate sheet to the Plaintiff.

1. Basic facts

(a) Land partitioning relationship;

The real estate listed in the attached list (hereinafter referred to as "each forest of this case"; hereinafter referred to as "the individual land shall be specified as the lot number) is derived from H 46,785 square meters of land in the window of Changwon-si. The above H forest was divided into Ri I or J forest (the instant K-si shall be divided into Naom) such as 27,110 square meters of land in the same Ri, on March 28, 1995, and the above Y forest was divided into H 27,110 square meters of land (hereinafter referred to as "H forest" before the division) again divided into H 27,110 square meters of land in the same Ri, H 450 square meters of land in the same Ri, and the forest of this case was divided into Ma 6,056 square meters or M Doom (hereinafter referred to as "MN forest of this case") and divided into 30,000 square meters of forest of this case.

B. On November 29, 1996, the Korean National Railroad issued a public announcement on December 10, 1996 that the entire forest and fields, including H forest and fields, prior to the subdivision of the closed railway site.

2) Accordingly, the possessor of the daily forest as the representative of the network KimP paid the bid bond corresponding to the area occupied by each party to the network KimP with the bid price for the said forest as the representative of the network KimP, and then the accurate amount was to be settled ex post facto.

3) The Plaintiff paid KRW 7,00,000 as a bid bond to the deceased KimP on December 10, 1996 in the course of tendering on the H forest and three parcels, other than H forests, prior to the division.

4) On December 16, 1996, Korea concluded a sales contract with the network KimP with respect to the land of H 51,879 square meters for three parcels, other than the land of H 51,879 square meters prior to the division, which is a State property, through competitive bidding. On February 20, 1997, Korea again concluded a sales contract with the network KimP on the land of 47,486 square meters, excluding the part to be incorporated in the national highways.

5) On March 11, 1997, Korea received the purchase price from the deceased KimP, divided the sold real estate into 30 parcels at the request of the deceased KimP, and issued the sale certificate to the deceased KimP on May 15, 1997. Since the former owners of the forest and fields, including the deceased KimP, demand to deliver the sale certificate directly to each possessor on the grounds of double-payment of taxes, registration fees, etc., Korea issued the sale certificate and the registration delegation certificate to the deceased KimP and the 19 persons, on June 18, 1997.

6) Accordingly, with respect to the instant K forest and the instant K forest and the instant forest and the instant forest and the divided M forest, the registration of ownership transfer of 1/2 shares was completed in the name of the Changwon District Court No. 39302 on June 30, 1997, respectively under the name of Defendant Gamb and GamC (hereinafter “instant registration of ownership transfer”).

C. Progress of the relevant lawsuit

1) Changwon District Court 97Kadan23450

A) The Plaintiff filed a lawsuit claiming ownership transfer registration on the ground of termination of title trust in relation to the instant K forest and Ma prior to partition, by asserting that the Plaintiff possessed the portion of (a), (b), (d) and (e) indicated in the separate sheet among the instant K forest and Ma prior to partition, as the Changwon District Court 97Gadan23450, which was the Defendant ParkB and the deceased MaC.

B) On July 16, 199, the above court held that the part which the Plaintiff held in title with Defendant Gambling and GambingC is limited to the part of (a) part of 520 square meters in the ship (hereinafter “the part of (a)”) connected with each of the items in the annexed drawing No. 1, 2, 3, 10, 11 and 1 among the land in the instant case, and the part of (d) part of the land before subdivision No. 12,13, 14, 14, 25, 26, 27, and 12 of the same drawing No. 12,637 square meters in sequence (hereinafter “the part of (d) in the instant case”) among the land in the instant case and the part of (14,354, 11, and 11, and (2) of the instant case, the Defendant dismissed the Plaintiff’s claim for the registration of title transfer from the Plaintiff to the Defendant under title trust agreement No. 970,71,70.

C) Although the Plaintiff appealed against the appeal, the judgment dismissing the appeal was rendered by the Changwon District Court 99Na8289, and the judgment dismissing the appeal was rendered by the Supreme Court 2002Da12017, and the judgment of the court of first instance became final and conclusive as it is.

2) Changwon District Court 2005Kadan19286

A) The Plaintiff: (a) intentionally omitted the Plaintiff from the list of bidders on three parcels, including H, and added the Plaintiff to Defendant ParkB and Sim-C; (b) had been aware of the Plaintiff’s breach of trust, and the Republic of Korea actively conspireded with Defendant ParkB and Sim-C with the knowledge of such breach of trust; (c) provided that the ownership transfer registration in its name should be completed by issuing the sale certificate to Defendant ParkB and Sim-C; (d) against the Republic of Korea, the heir of the deceased Kim PP, Kim Q, Defendant Park Jong-B and Sim-C, the Changwon District Court Decision 2005No 19286, the Changwon District Court (205No 19286), filed a lawsuit against the Plaintiff Park Q, the Republic of Korea, on the ground of an agreement or the termination of title trust with respect to the instant K, and the Republic of Korea’s implementation of the procedure for ownership transfer registration to Kim Q, in subrogation to preserve the above right to claim ownership transfer registration; and (d) Defendant ParkB and 263, the title trust transfer registration against the Plaintiff Park.

B) On July 25, 2006, the above court ruled that the plaintiff's right to claim for ownership transfer registration against Kim Q is not recognized, and sentenced that "the plaintiff's principal lawsuit against the defendant Republic of Korea, ParkB, and Park C is dismissed, and the plaintiff's claim against the defendant Kim Q is dismissed. The plaintiff takes over the ownership transfer registration procedure based on the termination of each title trust from the defendant ParkB and Park C as to each of the above (a) and (d) part 1/2, and simultaneously takes over the ownership transfer registration procedure, and paid KRW 14,354,300 to the defendant ParkB and Park C.

C) Although the Plaintiff appealed and filed an appeal, the judgment dismissing the appeal was rendered by the Changwon District Court 2006Na10754 (principal lawsuit), 2006Na10761 (Counterclaim), Supreme Court 2008Da17014 (principal lawsuit), 2008Da17014 (Counterclaim) and the judgment dismissing the appeal became final and conclusive as it is.

(d) Death of the deceased;

According to the deceased on August 30, 201, when the deceased C was under the proceeding in this case, the Defendant KimD, HaE, Haf, and YG succeeded to the property of the deceased C.

E. Deposit of the Plaintiff’s settlement money

On July 7, 2011, when the lawsuit of this case was pending, the Plaintiff deposited KRW 14,354,300, which was recognized in the said Changwon District Court 97Da23450 and the Changwon District Court 2005Kadan19286, for Defendant Gmb and Simc, and the Defendants received them.

[Ground of recognition] Facts without dispute, Gap evidence 1-1, 3, 5, Eul evidence 1-1 to 3, the purport of the whole pleadings

2. Judgment as to the main claim

A. The plaintiff's assertion

1) From around 1984, the Plaintiff occupied and cultivated the instant K forest and the instant K forest before subdivision. 2) The Plaintiff’s occupant, including the Plaintiff, as the net KimP’s representative in the auction procedure for the sale of State-owned property, agreed to complete the registration of ownership transfer with respect to each part of possession after awarded the bid. In accordance with the agreement, on December 10, 1996, the Plaintiff paid 7,000,000 won as the bid bond for the instant K forest and the instant forest and the instant forest and the YR forest before subdivision, and the net KimP was awarded the bid price in its name including the said land.

3) Although the deceased KimP and the occupant of the State property were awarded a successful bid in the deceased KimP name, they demanded the Republic of Korea to transfer the registration of ownership transfer directly to each occupant on the ground that the registration cost and tax burden would be increased in the event that the transfer registration is again made in the name of the occupant after the transfer registration was made in the deceased KimP name.

4) However, the deceased KimP intentionally omitted the Plaintiff from the list of bidders, added the Plaintiff Park B and the deceased C to the list, and accordingly, the Republic of Korea issued the sale certificate to Defendant Park B and the deceased C, thereby completing the registration of ownership transfer in the name of Defendant Park B and the deceased C with respect to the instant H-3 forest and the instant H-18 forest and fields before division, and thus, the registration of ownership transfer is null and void as the registration of invalidity of the cause.

5) Accordingly, Defendant KimD, YE, YF, and YG, who are the inheritors of Defendant Gamb and Gamb, are obligated to implement the registration procedure for ownership transfer with respect to the instant MO forest and the instant N forest, which were divided into the instant K forest and the instant forest and the instant forest and the instant NP, which were divided into the instant forest and the divided forest.

B. Determination

Since a final and conclusive judgment in favor of the plaintiff has res judicata effect, where the party against whom the final and conclusive judgment in favor of the plaintiff has been rendered files a lawsuit again against the other party to the lawsuit identical to the final and conclusive judgment in favor of the plaintiff, and then the lawsuit is unlawful as there is no benefit in the protection of rights (see, e.g., Supreme Court Decision 2005Da74764, Apr. 14, 2006). If the subject matter of the lawsuit is re-written in a subsequent suit, it shall conflict with the res judicata effect of the final and conclusive judgment in the previous suit, and if the final and conclusive judgment is against the plaintiff, it shall not be judged inconsistent with the final and conclusive judgment (see Supreme Court Decision 76Da1488, Dec. 14, 1976)

However, as seen earlier, the Plaintiff filed a claim for ownership transfer registration against Defendant Gamb and Gamb before the instant lawsuit was filed by Changwon District Court Decision 97Da23450, Changwon District Court Decision 97Da23450, the Plaintiff received 14,354,300 won from the Plaintiff and received payment from the Plaintiff for each of the 1/2 shares of the instant land in (a) and (d) on August 7, 1997; Defendant Gamb shall implement the procedure for ownership transfer registration on the ground of termination of each title trust on July 21, 1997; Defendant Hamb rejected the remainder of the Plaintiff’s claim; and the part concerning the forest in (d) of the instant lawsuit in question is identical to the part concerning the instant case in question, and thus, the Plaintiff cannot accept the remainder of the claim for ownership transfer registration on the grounds of which the agreement was made against the Plaintiff and the entire judgment against the Plaintiff cannot be accepted as the remainder of the claim for ownership protection of the forest in question due to lack of evidence to be accepted.

3. Judgment on the conjunctive claim

The plaintiff asserts that the acquisition by prescription has been completed by possession of each forest of this case in peace and openly with the intention to own the forest of this case for twenty (20) years. Thus, it is insufficient to recognize the above assertion only by the evidence submitted by the plaintiff, and there is no other evidence to acknowledge it. Thus, the plaintiff's assertion is without merit

4. Conclusion

Therefore, the part of the lawsuit of this case concerning the main claim as to forest land in the part of (a) and (d) of this case is unlawful and dismissed, and all of the plaintiff's remaining main claim and conjunctive claim are dismissed as they are without merit. It is so decided as per Disposition.

Judges Gyeong-hee