A. Whether it is against the res judicata effect of the judgment in the previous suit if the party who filed a claim for the registration of ownership transfer on the ground of the completion of prescription in the previous suit but lost the possession on the ground that the possession is the possession on the ground that it is the possession on the part or all of the possession prior to the closing of argument in the previous suit makes the possessory right and the time of commencement of possession a different claim

B. Whether it is merely a different assertion as to the possessory right, which is the method of attack, in the latter case, if the person asserted the possession as State-owned property while asserting the possession as the property devolving upon the same real estate in the preceding lawsuit

C. Where the Constitutional Court renders a decision of unconstitutionality with respect to the law which is the premise of the judgment after the judgment becomes final and conclusive, whether the final and conclusive judgment can be contested

A. The same fact as the timing for the commencement of possession, which serves as the basis for calculating the period of possession, or the title of possession, which assumes whether the possession is an autonomous possession, is merely an indirect fact that is the requirement for the acquisition by prescription, and thus, the court should recognize the ownership transfer registration based on the completion of acquisition by prescription without being bound by the parties’ assertion. As such, if the party who filed a claim for the ownership transfer registration based on the completion of acquisition by prescription in the prior suit but lost the possession on the ground that it is the possession is the possession of another party, in which all or part of the possession prior to the closing of argument in the prior suit, takes the cause for the subsequent suit as the cause for the subsequent suit, and then asserts otherwise, the source of possession right and the timing for the commencement of possession are different from that of the prior suit by submitting the attack method that existed before the closing of argument in the prior suit, and thus, it cannot be allowed as it goes against the res judicata of the judgment in

B. Even if the former asserted the possession of the property devolvingd upon the same real estate in the previous suit and the latter asserted the possession of the property as State property, it is merely a different assertion as to the possessory right, which is an attack method.

C. It is not possible to dispute the validity of the final and conclusive judgment on the law which is the premise of the judgment after the judgment became final and conclusive, on the ground that the Constitutional Court made a decision of unconstitutionality.

(b)Article 202(a) of the Civil Procedure Act; Article 245(c) of the Civil Code; Article 107(1) of the Constitution; Article 41 of the Constitutional Court Act;

A. Supreme Court Decision 80Da2671 delivered on June 22, 1982 (Gong1982, 678) (Gong1982, 678) 93Da60120 delivered on April 15, 1994 (Gong1994Sang, 1439). Supreme Court Decision 92Nu977 delivered on April 27, 1993 (Gong193Ha, 1609)

[Judgment of the court below]

Korea

Seoul High Court Decision 93Na40623 delivered on May 4, 1994

The appeal is dismissed.

The costs of appeal are assessed against the plaintiff.

We examine the grounds of appeal.

1. The court below reasoned that the Plaintiff purchased the instant real estate from Nonparty 1, Japan, on July 18, 1945, and sought implementation of the procedure for ownership transfer registration on the ground of the said sale and purchase, alleging that ownership of the instant real estate was reverted to the Defendant, and that it was preliminaryly owned on July 18, 1945 and openly owned the instant real estate on July 18, 1965, and that the acquisition by prescription was completed on July 18, 1965 (hereinafter “the previous lawsuit”). The court below rejected the Plaintiff’s claim for ownership transfer registration on the ground of the same date as Seoul District Court’s 87Du1810, and that the ownership transfer registration of the instant real estate was completed on July 18, 1965 (hereinafter “the previous lawsuit”) from the 196th anniversary of the date of acquisition by prescription for the first five years prior to the date of acquisition by prescription for the first five years prior to the date of acquisition by prescription for the first five years prior to the date of acquisition by prescription for the foregoing.

2. The same fact as the timing for the commencement of possession, which serves as the basis for calculating the period of possession, or the title of possession, which assumes whether the possession is an autonomous possession, is merely an indirect fact that is the requirement for the acquisition by prescription, and thus, the court should recognize the ownership transfer registration on the ground of the completion of the acquisition by prescription without being bound by the parties’ assertion. Thus, if the party who filed a claim for the ownership transfer registration on the ground of the completion of the acquisition by prescription in the prior suit but lost the possession on the ground of the possession is considered as the cause of the subsequent suit, and if all or part of the facts of possession prior to the closing of argument in the prior suit, which constituted the cause of the subsequent suit, were to be considered as the cause of the subsequent suit, the source of possession right and the timing for the commencement of possession, which were not submitted before the closing of argument in the prior suit, are sought a judgment different from the prior suit by submitting the method of attack to the subsequent suit (see, e.g., Supreme Court Decision 80Da2671, Jun. 22222, 19829).

Although the Plaintiff asserts in the instant lawsuit that the date of the completion of prescription is different from that of the previous suit, this is due to the fact that the possession prior to the closing of argument in the previous suit, which constitutes the cause of the conjunctive claim, is again asserted differently from the starting date of the independent possession by asserting that the possession was the fact constituting the cause of the claim in the previous suit. Therefore, the conjunctive claim in the previous suit and the instant lawsuit cannot be deemed to differ from the subject matter of lawsuit.

3. The argument points out that the claim in this case was a motion for the prescriptive acquisition of the property to which the previous claim belongs, and there is a different legal composition from the previous claim, and that the previous claim in this case is a motion for the prescriptive acquisition of the State property, and that the state property does not become an object of prescriptive acquisition in the previous lawsuit, and there was a decision of unconstitutionality by the Constitutional Court on May 13, 1991 as to the miscellaneous property under Article 5 (2) of the State Property Act, which became effective before and after the enforcement of the State Property Act, the period of possession after April 1, 197. However, if the previous lawsuit is judged to be contrary to the res judicata effect of the judgment of the previous lawsuit, the plaintiff cannot assert the completion of prescriptive acquisition even after the decision of unconstitutionality becomes void until the date of the previous lawsuit's decision of unconstitutionality, and thus the previous lawsuit cannot be asserted against the claim in this case's 97 Supreme Court decision which became final and conclusive (see, e.g., Supreme Court Decision 97Da197., the previous decision).

4. Therefore, the appeal is dismissed and all 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 Jeong Jong-ho (Presiding Justice)