A. In the judgment of the first instance court, the application for intervention by the independent party is dismissed, and the intervenor does not appeal within the period of appeal, and where only the plaintiff appealed, whether the part of the application for intervention by the said independent party is decided separately from the principal claim (affirmative)

B. Where an independent party's application for intervention did not have asserted that the plaintiff and the defendant brought an action against dismissal, and where the judgment dismissing the application because it failed to meet the requirements for intervention of the right holder, res judicata effect of the final judgment becomes final and conclusive.

C. The case reversing the judgment of the court below on the ground that it erred in the misapprehension of legal principles as to res judicata effect of the above dismissal judgment, inasmuch as res judicata effect has occurred by a final and conclusive judgment which dismissed the intervention in the petition of right in the first instance, where the intervenor asserted the intervention in the petition of right as well as the participation in the petition of right in the court of first instance, and the participation in the petition of right is identical to the participation in the petition of right in the court

A. In the judgment of the first instance court, the intervenor rejected the intervenor's application for intervention of the independent party and dismissed the plaintiff's claim within the appeal period, and where only the plaintiff appealed, the part which rejected the above application for intervention of the independent party was already finalized separately from the plaintiff's claim against the defendant, notwithstanding the plaintiff's appeal.

B. If the intervenor did not have any special assertion that the plaintiff and the defendant are conducting a fraudulent lawsuit in filing an application for intervention by an independent party, it shall be deemed that the plaintiff and the defendant participated in the so-called assertion of right under the former part of Article 72(1) of the Civil Procedure Act, not so-called illegal prevention participation. The judgment of the court of first instance shall be deemed to have res judicata effect only on the ground that the plaintiff's claim against the defendant against the defendant does not meet the requirements for intervention of the right holder, and thus, the judgment of the court of first instance is dismissed.

C. The case affirming the judgment of the court below on the ground that the plaintiff's claim against the defendant against the defendant was filed in collusion with the plaintiff and the defendant's intent to harm the intervenor during the court below's proceeding, and the plaintiff's participation in the right claim under the latter part of Article 72 (1) of the Civil Procedure Act was also asserted, the purport of participation against the defendant in the above right claim is the same as that of participation in the court of first instance, and the purport of participation in the plaintiff's claim to confirm that there is no sales contract between the plaintiff and the intervenor does not exist, and it cannot be deemed that it is different from the purport of participation in the court of first instance in the court of first instance, where the plaintiff's claim against the defendant was sought to confirm that there is no right to claim transfer registration based on the above sale, and therefore, as long as the res judicata effect has occurred by the judgment of the court of first instance on the ground that the participation in the right claim in the court of first instance was unlawful, the court below should have dismissed the judgment of the court below as to the plaintiff's right claim for intervention in the judgment.

(a)Article 72(1) and Article 202(1)(c) of the Civil Procedure Act;

A. Supreme Court Decision 4294No251, 252 Decided May 24, 1962 (No. 102Da320, 321 Decided June 27, 1972) (No. 64Da1492 Decided February 4, 1965)

[Judgment of the court below]

Defendant 1 and one other

Attorney Park Jong-hwan et al., Counsel for the plaintiff-appellant

Busan District Court Decision 90Na5518, 90Na9664 delivered on December 14, 199

The judgment below is reversed, and the case is remanded to Busan District Court Panel Division.

We examine the Plaintiff’s ground of appeal.

1. On the fourth ground for appeal

The plaintiff, on June 29, 1990, accepted all the plaintiff's claims at the second date for pleading of the court below 10:00, and therefore, the lawsuit of this case was concluded at that time. However, according to the records, it is evident that the defendants were not present at the second date for pleading of the court below, and there was no pleading since the date has been postponed. However, on July 20, 1990, the defendant's response on May 30, 199, which was stated on the third date for pleading of the court below 10:00, and on the third date for pleading of the court below 10:00 of the same year, the defendants' response on May 10, 1990, which was stated on the third date for pleading of the court below 10:00, and on the third date for pleading of the court below 6:100 of the same year, each of the real estate of this case was owned by the plaintiff, but it cannot be viewed that the defendants acknowledged

2. On the second ground for appeal

According to the records, the plaintiff sold the real estate of this case to an independent party intervenor on August 2, 1984 (hereinafter "the intervenor sold it again to the plaintiff on May 20, 1988, and the plaintiff sold it again to the plaintiff on April 10, 1989, and the plaintiff and the plaintiff asserted that there was an agreement between the plaintiff and the plaintiff on intermediate omission registration directly using the above real estate as machinery from the defendants on April 10, 1989, and that the plaintiff filed a lawsuit against the defendants on August 20, 1984 demanding the implementation of the procedure for registration of transfer of ownership on the above real estate (the grounds for registration was corrected from the appellate court to the sale on May 20, 1988). The plaintiff did not lawfully request the plaintiff to purchase the above real estate from the defendants on October 10, 1989, but the plaintiff did not have an agreement on the plaintiff's right to request purchase and sale of the above real estate on the ground that the plaintiff did not have an executor's right to request purchase and sale of this case.

Therefore, the part of the judgment of the court of first instance which rejected the intervenor's application for intervention in the independent party within the appeal period is to be determined separately from the plaintiff's principal claim against the defendant, notwithstanding the plaintiff's appeal (see Supreme Court Decision 4294DaDa251, 252 delivered on May 24, 1962; Supreme Court Decision 72Da320, 321 delivered on June 27, 1972; Supreme Court Decision 72Da320, 321 delivered on June 27, 197). On the other hand, since the intervenor filed an application for intervention in the above independent party, the plaintiff and the defendants filed a fraudulent lawsuit, it shall not be so-called the so-called request for intervention in the right under the former part of Article 72 (1) of the Civil Procedure Act, which is not the so-called request for intervention in the right. The judgment of the court of first instance shall be dismissed as it did not meet the requirements for intervention in the plaintiff's claim for intervention in the real estate in this case.

However, on August 23, 1990 where the plaintiff's claim of this case against the defendant was pending at the court below, the intervenor asserted that the plaintiff and the defendants in collusion with the intent to impair the intervenor and conduct the lawsuit of this case, and that the plaintiff's claim of this case against the defendant was in progress on August 23, 1990, the plaintiff filed an application for participation in prevention of gambling under the latter part of Article 72 (1) of the Civil Procedure Act, which seeks to confirm that there is no sales contract between the plaintiff and the intervenor on August 20, 1988, and stated that the plaintiff's claim of this case against the defendant was in conflict with the plaintiff's intent to harm the intervenor, and that the plaintiff's lawsuit of confirmation of non-existence of the plaintiff's lawsuit against the plaintiff against the plaintiff is legitimate and dismissed the plaintiff's claim for participation as the plaintiff's right is compatible with the plaintiff's right against the defendant.

However, according to the intervenor's participation in the court below, the purport of participation against the defendants is identical to that of participation in the court of first instance, and the purport of participation against the plaintiffs is also identical to that of participation in the plaintiff on May 20, 198 (see Supreme Court Decision 64Da1492 delivered on February 4, 1965). It is substantially the same as that of participation in the court of first instance in the court of first instance, which sought confirmation that there is no claim for ownership transfer registration based on sale and purchase from the plaintiff on May 20, 198 (see Supreme Court Decision 64Da1492 delivered on February 4, 1965). Therefore, once res judicata effect has occurred by the court of first instance as to the allegation of right in the court of first instance as to the illegality of participation in the plaintiff's assertion of right in the court of first instance due to the lack of participation requirements, the court below should not make a judgment on the legitimacy of the intervenor's participation in the court of first instance, and should have deliberated only the intervenor's participation in the judgment.

Therefore, without examining the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Choi Jae-ho (Presiding Justice)