[1] The existence of res judicata effect of a decision to recommend a compromise and the standard thereof (=the time of confirmation)

[2] In a case where the subject matter of a prior suit is a claim for ownership transfer registration with the nature of a claim in the nature of a claim in the prior suit, whether the prior suit can be deemed a successor who has res judicata effect of the decision to recommend a compromise after the decision to recommend a compromise became final and conclusive

[3] In a case where a decision of recommending compromise is confirmed in respect of the subject matter of a lawsuit seeking cancellation of ownership registration as a claim for exclusion of interference with ownership based on ownership, or a lawsuit seeking implementation of the procedure for registration of ownership transfer based on the restoration of the title of real estate, whether the legal nature of the claim is changed into a claim based on claim (negative

[4] The case holding that in case where Gap et al., who received a certificate of the personal seal impression from Eul et al. finished the registration of inheritance of inherited real estate and completed the registration of ownership transfer from Byung with respect to shares equivalent to the ratio of inheritance of Gap et al. after obtaining a successor execution clause according to the settlement recommendation, which became final and conclusive on November 24, 2005, in case where Byung agreed to transfer 15/17 of its shares to Byung after completing the registration of ownership transfer based on donation of 13/17 of the total share of inheritance of Eul et al. after completing the registration of ownership transfer based on donation of the gift of Eul et al., Byung completed the registration of ownership transfer of Eul et al.'s shares, Byung made a provisional disposition prohibiting disposal of Eul's shares on March 8, 2003, and Eul et al. completed the registration of ownership transfer against Eul et al.

[1] Article 231 of the Civil Procedure Act provides, “The decision of recommending reconciliation shall have the same effect as a judicial compromise when there is no objection within the period of raising an objection against the decision, when the decision of recommending reconciliation becomes final and conclusive, or when the party withdraws an objection or renounces the right to raise an objection,” the final decision of recommending reconciliation shall have res judicata effect between the parties concerned. In addition, when an objection against the decision of recommending reconciliation is lawful, a lawsuit shall have res judicata effect (Article 232(1) of the Civil Procedure Act). Therefore, the parties concerned may raise a new objection against the grounds that have arisen after the decision of recommending reconciliation was served, and the successor after the delivery of the decision of recommending reconciliation may file an objection at the same time as the objection. In light of these, it is reasonable to interpret that the res judicata effect of the decision of recommending reconciliation takes

[2] In a case where the subject matter of a prior suit is a claim for ownership transfer registration with the nature of a claim in the nature of a claim in the prior suit, the person to whom the ownership registration of the subject matter is transferred after the closing of argument in the prior suit does not fall under “he successor after the closing of argument” under which the res judicata effect of the prior suit is effective. Such legal doctrine does not apply to the person to whom

[3] In a lawsuit seeking the cancellation of ownership registration as a claim for the removal of interference based on ownership, or a lawsuit seeking the implementation of the procedure for the registration of ownership transfer based on the restoration of real name, if the decision of recommending compromise becomes final and conclusive on the subject matter of lawsuit, the other party is still obligated to eliminate interference as a real right. The legal nature of the claim is not changed to the claim on the ground that the decision of recommending compromise has the original

[4] In a case where Gap et al. issued a certificate of personal seal impression, etc. to transfer Eul's rights to his inherited property to Eul among co-inheritors and completed the registration of ownership transfer from Byung's share equivalent to the ratio of inherited property such as Gap et al. on the ground of donation at the same time as the inheritance registration of Eul et al. was completed, Byung agreed to transfer 15/17 of his share to Byung on March 8, 2003, Byung made a provisional disposition prohibiting disposal of Eul's share with the right to claim the registration of ownership transfer under the above agreement as preserved right, and Eul et al. completed the registration of ownership transfer on November 24, 2005, on the ground that " Eul et al. conducted the procedure of registration of transfer due to the recovery of real name shares of inheritance to Eul et al.", the case holding that Gap et al.'s ownership transfer cannot be viewed as valid provisional disposition's right to claim the registration of ownership transfer registration based on the provisional disposition's consent to seek the registration of ownership transfer cancellation due to Byung's ownership transfer.

[1] Articles 216(1), 218, 231, and 232(1) of the Civil Procedure Act / [2] Articles 218 and 231 of the Civil Procedure Act / [3] Article 214 of the Civil Act, Article 231 of the Civil Procedure Act / [4] Articles 218 and 231 of the Civil Procedure Act, Article 30 of the Civil Execution Act

[2] Supreme Court Decision 2002Da64148 delivered on May 13, 2003 (Gong2003Sang, 1282) / [3] Supreme Court Decision 72Da1842 delivered on June 8, 1976 (Gong1976, 923) Supreme Court Decision 76Da2778 delivered on March 22, 197 (Gong1977, 1001)

Plaintiff (Law Firm Dae-Gyeong, Attorneys Shin Jong-sung et al., Counsel for the plaintiff-appellant)

Defendant 1 and five others (Law Firm Daegu, Attorneys Kim Jong-ho et al., Counsel for the defendant-appellant)

Daegu District Court Decision 2009Na2031 Decided December 1, 2009

All appeals are dismissed. The costs of appeal are assessed against the Defendants.

The grounds of appeal are examined.

1. On the basis of res judicata effect of the decision to recommend a compromise

Article 231 of the Civil Procedure Act provides, “The decision of recommending reconciliation shall have the same effect as a judicial compromise when the party withdraws an objection or waives the right to file an objection when there is no objection within the time period for filing an objection against the decision,” so the final decision of recommending reconciliation shall have res judicata effect between the parties. In addition, when an objection against the decision of recommending reconciliation is lawful, a lawsuit shall have res judicata effect between the parties (Article 232(1) of the Civil Procedure Act). Therefore, the parties may file a new objection against the grounds arising after the decision of recommending reconciliation was served, and the successor after the decision of recommending reconciliation was served may file an objection against the decision of recommending reconciliation at the same time as the objection is filed. In light of these, the res judicata effect of the decision of recommending reconciliation shall be interpreted as the basis of the final decision.

According to the facts acknowledged by the court below, the co-defendant 1 of the court of first instance completed the registration of transfer of ownership with respect to the portion of co-defendant 1 of the court below among the real estate listed in the table 1 to 6 to 9 of the court below's attached Table 1 of the court below before the decision

Thus, the co-defendant 1 of the first instance court cannot be deemed to be the "he succeeding person" whose res judicata effect of the decision to recommend a compromise in this case. The decision of the court below to the same purport is just, and there is no violation of law such as misunderstanding of legal principles as to the case of res judicata effect.

2. As to whether res judicata effect on the decision of recommending reconciliation in this case on the plaintiff

A. In a case where the subject matter of a prior suit is a claim for ownership transfer registration with the nature of a claim in the nature of a claim in the prior suit, the person to whom the ownership registration of the subject matter is transferred after the closing of argument in the prior suit does not fall under “he successor after the closing of pleading” which has res judicata effect in the prior suit (see, e.g., Supreme Court Decision 2002Da64148, May 13, 2003). Such a legal principle is that the person to whom the ownership registration of the subject matter

On the other hand, while a lawsuit seeking the cancellation of ownership registration as a claim for the removal of interference based on ownership or a lawsuit seeking the implementation of the procedure for the registration of ownership transfer based on the restoration of the real name, the other party is still obligated to eliminate interference as a real right. On the other hand, the legal nature of the claim does not change to the claim with the claim on the ground that the decision of recommending compromise has the original effect (see Supreme Court Decisions 72Da1842 delivered on June 8, 1976; 76Da2778 delivered on March 22, 197).

Nevertheless, the court below erred by misapprehending the legal principles as to the effect of the decision of recommending reconciliation in this case, which determined that the plaintiff does not have res judicata effect on the plaintiff, even if the plaintiff was transferred ownership registration from co-defendant 1 after the decision of recommending reconciliation in this case became final and conclusive, without examining the legal nature of the right to claim ownership transfer registration based on the original decision of recommending reconciliation in this case.

B. Meanwhile, where a provisional disposition creditor obtains a favorable judgment in the lawsuit on the merits after the registration of prohibition of disposal on real estate has been completed, or where a provisional disposition creditor has made a registration of ownership transfer registration or ownership transfer cancellation registration based on a substantive legal relationship that forms the basis of a provisional disposition jointly with the debtor on the merits, the provisional disposition creditor may deny the effect of disposal in violation of provisional disposition to the extent of the right to be preserved (see Supreme Court Decision 2000Da65802, 65819, Feb. 28, 2003

The reasoning of the lower judgment and the evidence duly admitted by the lower court reveal the following facts. In other words, Nonparty 2 owned the real estate indicated in the [Attachment 1] List of the lower judgment (hereinafter “each of the instant real estate”) on June 26, 1998, and Defendant 1, his wife, Defendant 3, 4, 5, 6, and Nonparty 1 were co-defendant 1 of the lower court’s judgment with the intention of acquiring the right to the inherited property from co-defendant 1 of the lower judgment on the ground that “The Defendants were entitled to obtain the above real estate share transfer registration from Nonparty 1 of the lower judgment on behalf of the Defendants on March 25, 199.” The lower court’s co-defendant 1 did not complete the registration of inheritance on behalf of the Defendants on the ground that Nonparty 1’s share transfer registration of 13/17 shares in each of the instant real estate was based on an agreement prohibiting the transfer of ownership to the Plaintiff’s co-defendant 1 of the instant real estate on the ground that the Defendants’ share transfer registration was completed.

Examining these facts in light of the legal principles as seen earlier, since the Defendants completed the registration of ownership transfer with the intention of donation on their shares among each of the real estate in this case, the registration in the court below's co-defendant 1 is valid, and the Plaintiff's provisional disposition against disposal and the ownership transfer registration based on the agreement that became the basis thereof is also valid. Thus, the Plaintiff is a provisional disposition creditor who completed the registration of ownership transfer pursuant to the provisional disposition prior to the decision of recommending settlement in this case's recommendation, and is in the position to deny the validity of the disposal act in violation of the provisional disposition within the scope of the preserved right. Accordingly, the Plaintiff can seek for cancellation of ownership transfer registration conducted against the above provisional disposition with respect to the shares equivalent to each of the shares of the Defendants among the real estate in this case's paragraphs (1) through (4) of this case, and therefore, the Plaintiff cannot

C. As seen earlier, the lower court erred by misapprehending the validity of the decision recommending reconciliation, but the lower court’s conclusion that the Plaintiff did not have res judicata effect on the ground that the decision recommending reconciliation in this case was added, and that the Plaintiff may claim the cancellation of each of the above shares transfer registration by the Defendants, is justifiable, and the lower court’s error does not affect the conclusion of the judgment. The grounds of appeal disputing this cannot

3. As to the validity of the illegal succession execution clause

Since the execution of the obligation to express intent does not require an execution clause (Article 263(1) of the Civil Execution Act), where there is any defect in the registration of transfer due to such execution, a lawsuit demanding the cancellation or restoration of such registration may be brought even without filing an objection against the grant of execution clause or litigation for objection against the grant of execution clause.

Therefore, the argument in the grounds of appeal disputing this cannot be accepted.

4. Conclusion

Therefore, all appeals are 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 Kim Yong-deok (Presiding Justice)