In a lawsuit seeking cancellation of provisional registration based on land ownership, whether res judicata of the dismissed final and conclusive judgment affects the case where a third party who acquired the right to collateral security from the land owner files a claim for cancellation of the same provisional registration based on the right to collateral security (negative)

Res judicata of a final and conclusive judgment refers to the binding force at which the parties cannot make arguments that conflict with this and the court cannot make a decision that conflict with this, and it does not have the substantive legal effect that alters the substantive legal relationship in accordance with the contents of the final and conclusive judgment.

The subject matter of a lawsuit seeking cancellation of a provisional registration based on a real right claim based on land ownership is a claim for cancellation of a provisional registration. As such, res judicata of a final and conclusive judgment dismissed in the lawsuit is limited to the absence of a claim for cancellation of a provisional registration itself, and does not extend to the existence of a land ownership which is not the subject matter of a lawsuit. Furthermore, the content of land ownership owned by the landowner due to the above dismissed final and conclusive judgment, or the substantive substance of a claim

The third party who has acquired the right to collateral security from the landowner after the closure of arguments in the lawsuit seeking cancellation of the above provisional registration is entitled to legally acquire the right to claim the right to collateral security as a general effect of the right to claim the right to claim the cancellation of the provisional registration against the losing party, which is the object of the lawsuit seeking cancellation of the above provisional registration, and does not have the right to claim the right to claim the right to claim the right to claim the right to claim the right to claim the right to collateral security which he has lawfully acquired. Therefore, the third party does not constitute “the successor

Therefore, in a lawsuit seeking cancellation of provisional registration based on land ownership, res judicata of the final and conclusive judgment dismissed does not extend to a third party who acquired the right to collateral security from the land owner after the closing of argument in the lawsuit.

Article 218(1) of the Civil Procedure Act; Articles 214 and 370 of the Civil Act

[Plaintiff-Appellant] Plaintiff 1 and 1756 (Gong1987, 1141)

Plaintiff (Law Firm Sejong, Attorneys Kim Jong-ok et al., Counsel for the plaintiff-appellant)

NexEX Construction Co., Ltd. (Law Firm LLC, Attorneys Kim Tae-tae et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2019Na2005909 decided July 19, 2019

The appeal is dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal are examined.

1. According to the reasoning of the lower judgment and the record, the following facts are revealed.

A. On January 15, 2009, Nonparty 1 on behalf of Nonparty 2, Nonparty 3, and Nonparty 4 (hereinafter “Nonindicted 2, etc.”), on behalf of the Defendant, concluded a pre-contract with Nonparty 2, etc. on behalf of the Defendant regarding the portion of Nonindicted 2, etc. among each real estate listed in Nos. 1 through 7 of the attached list Nos. 1 through 7 of the lower judgment, and entered into a pre-contract with the pre-contracted as Defendant, and entered into a pre-contract with Nonparty 2 and the pre-contracted as Defendant on the real estate listed in No. 8 of the attached list No. 8 as owned by Nonparty 2 (hereinafter “instant pre-contract”).

B. The Defendant, on the ground of the instant reservation, completed the provisional registration of the right to claim transfer of ownership as to the shares of Nonparty 2, etc. among each real estate listed in No. 1-7 of the attached list of the lower judgment on the ground of the instant reservation, and the provisional registration of the right to claim transfer of ownership as to the real estate listed in No. 8 of the same list

C. On January 17, 2011, Nonparty 2, etc. filed a lawsuit against the Defendant claiming for the cancellation of the provisional registration of this case based on ownership by asserting that “Nonindicted 1 voluntarily completed the provisional registration of this case without authority.” On May 25, 2012, the court dismissed the instant claim on the ground that “Nonindicted 1 completed the provisional registration of this case in accordance with the granting of disposition authority by Nonparty 2, etc.” and the said judgment became final and conclusive on June 14, 2012 (hereinafter “the previous lawsuit of this case”).

D. On May 23, 2013, Nonparty 2, etc. filed a lawsuit against the Defendant claiming for the cancellation of the provisional registration of this case based on ownership by asserting that “the provisional registration of this case was made by means of a false trade promise forged by Nonparty 1, and thus null and void or the promise to sell this case constitutes both representation.” On June 25, 2015, the appellate court dismissed the said claim on the ground that the instant promise to sell and purchase of this case constitutes both representation stipulated in Article 124 of the Civil Act, and thus, it cannot be claimed for cancellation of the provisional registration of this case in accordance with the res judicata effect of the judgment of the previous lawsuit of this case, and the said judgment became final and conclusive on November 3, 2015.

E. On November 14, 2017, the Plaintiff filed the instant lawsuit against the Defendant seeking cancellation of the provisional registration of this case on the ground that the instant provisional registration was completed on November 14, 2017.

2. As to the assertion of misapprehension of legal principles as to res judicata

A. Res judicata of a final and conclusive judgment refers to the binding force at which the parties cannot make arguments that conflict with this and the court cannot make a decision that conflict with this (Supreme Court Decision 86Meu2756 Decided June 9, 1987) and does not have the substantive legal effect that alters the substantive legal relationship in accordance with the contents of the final and conclusive judgment.

The subject matter of a lawsuit seeking cancellation of a provisional registration based on a real right claim based on land ownership is a claim for cancellation of a provisional registration. As such, res judicata of a final and conclusive judgment dismissed in the lawsuit is limited to the absence of a claim for cancellation of a provisional registration itself, and does not extend to the existence of land ownership which is not the subject matter of a lawsuit. Furthermore, the content of land ownership owned by the landowner due to the above dismissed final and conclusive judgment, or the substantive substance of a claim for real

The third party who acquired the right to collateral security from the landowner after the closure of the arguments in the lawsuit seeking cancellation of the above provisional registration has the right to claim the right to collateral security as a general effect of the right to claim the right to claim the right to claim the cancellation of the provisional registration, which is the object of the lawsuit seeking cancellation of the above provisional registration, and does not have the right to claim the right to claim the right to claim the right to claim the right to claim the right to claim the right to claim the right to collateral security which is the object of the lawsuit seeking cancellation of the above provisional registration. As such,

Therefore, in a lawsuit seeking cancellation of provisional registration based on land ownership, res judicata of the final and conclusive judgment dismissed does not extend to the case where a third party who acquired the right to collateral security from the land owner claims cancellation of the same provisional registration based on the right to collateral security after the closing of argument

B. The lower court rejected the Defendant’s assertion that “the Plaintiff constitutes a successor after the closing of argument, in which the judgment in the previous suit of this case became res judicata,” on the following grounds.

1) The Plaintiff lawfully acquired the right to collateral security regarding the instant real estate from Nonparty 2, etc. after the closure of the fact-finding proceedings in the instant previous suit.

2) The Plaintiff’s right to claim cancellation of the provisional registration of this case based on the Plaintiff’s right to collateral security, which is the subject matter of the instant lawsuit, takes place as a general effect of the right to collateral security acquired by the Plaintiff, and it does not result in the Plaintiff’s succession to the right to claim cancellation of the provisional registration

3) The Plaintiff cannot be deemed to fall under a successor after the closing of argument that has res judicata effect on the judgment prior to the instant lawsuit.

C. The above determination by the court below is just in accordance with the legal principles as seen earlier, and it did not err by misapprehending the legal principles as to res judicata as alleged in the grounds of appeal.

3. As to the remaining grounds of appeal

The lower court determined that: (a) the instant promise was concluded by Nonparty 1 on behalf of Nonparty 2 and the Defendant; (b) the Defendant was null and void pursuant to Article 124 of the Civil Act; and (c) the Defendant is obligated to perform the procedure for registration of cancellation of the instant provisional registration to the Plaintiff, a legitimate mortgagee. Examining the reasoning of the lower judgment in light of the record, the lower court did not err in its judgment by misapprehending the facts beyond the

4. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Sang-ok (Presiding Justice)