[1] Whether it goes against the res judicata of the final and conclusive judgment to seek a decision inconsistent with the existence of legal relations determined in the final and conclusive judgment by asserting the method of attack and defense that existed prior to the closing of argument in the previous suit in the subsequent suit on the same subject matter as the previous suit between the same parties (affirmative)

[2] The case holding that in a case where Party A entered into a contract with Party B to purchase land within the land transaction permission zone, and thereafter filed a lawsuit against Party B, and subsequently dismissed Party B’s claim for the performance of the procedure for the registration of ownership transfer, the claim for the registration of land transaction transfer was accepted, and the judgment dismissing Party B’s claim for the performance of the procedure for the registration of ownership transfer became final and conclusive, and the court of the previous lawsuit rendered a judgment on the premise that Party B’s claim was located within the permission zone since Party A did not assert the aforementioned land even after the land was revoked within the land transaction permission zone prior to the closing of argument

[1] Article 216 (1) of the Civil Procedure Act / [2] Article 216 (1) of the Civil Procedure Act

[1] Supreme Court Decision 80Da473 delivered on May 13, 1980 (Gong1980, 12853) Supreme Court Decision 91Da24847, 24854 delivered on October 27, 1992 (Gong192, 3238)

Plaintiff (Law Firm Rating, Attorneys Kim Nam-type et al., Counsel for the plaintiff-appellant)

Defendant

Suwon District Court Decision 201Na10447 decided August 25, 2011

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

The grounds of appeal are examined.

1. The facts duly established by the court below and the records of this case: on February 16, 2007, the plaintiff entered into a sale contract with the defendant for the purchase price of 250,000,000 won for the land (hereinafter "the sale contract of this case"). At the time of the sale contract of this case, the land of this case was located within the land transaction permission zone; the plaintiff filed a lawsuit against the defendant for ownership transfer registration, etc., and the judgment of the court of first instance was rendered on September 25, 2008; on September 4, 2009, the appellate court sentenced the land transaction registration of this case to the plaintiff on November 20, 209 and the judgment became final and conclusive (hereinafter "the previous lawsuit of this case"). The main claim for the sale permission of this case was that the land of this case had not been released from the sale permission zone of this case due to the land transaction registration of this case on February 16, 2007, the court dismissed the plaintiff's claim for the sale permission of this case on the land of this case.

2. The lower court determined that the instant lawsuit does not conflict with the res judicata effect of the final and conclusive judgment on the instant lawsuit, on the ground that the Plaintiff has a benefit in protecting the rights following the instant lawsuit, on the ground that the instant lawsuit does not conflict with the res judicata effect of the final and conclusive judgment on the instant lawsuit, even though the subject matter of the lawsuit differs from that of the instant lawsuit, and even if the instant lawsuit is identical to that of the instant lawsuit, the subsequent suit was brought by the Plaintiff against whom the judgment on the previous suit was rendered.

3. However, it is difficult to accept the above determination by the court below for the following reasons.

A. Since res judicata of a final and conclusive judgment affects a judgment as to the existence of legal relations alleged as a subject matter of a lawsuit, it is against the res judicata of the final and conclusive judgment to seek a judgment inconsistent with the existence of legal relations determined in the final and conclusive judgment by asserting the means of attack and defense that existed prior to the closing of argument in the previous suit in the subsequent suit on the same subject matter of a lawsuit as the previous suit between the same parties. Whether the parties were negligent in not knowing and not knowing the means of attack and defense in the previous suit (see Supreme Court Decisions 80Da473, May 13, 1980; 91Da24847, 24854, Oct. 27, 1992).

B. Examining the progress of the lawsuit above in light of the aforementioned legal principles, although the previous suit in this case was filed on the premise that the land in this case is located within the land transaction permission zone, the subject matter of the lawsuit in this case and the subject matter of the claim for ownership transfer registration among the previous suit in this case are identical to the claim for ownership transfer registration based on the sale contract in this case, even if it is based on the premise that the land in this case is located within the land transaction permission zone.

In addition, the circumstance that the instant contract was terminated in the land transaction permission zone and the instant contract was finally effective is a reason that existed before the closing of argument in the instant previous suit. Thus, even if the Plaintiff was unaware of such circumstance and did not make any assertion in the instant previous suit, it would be contrary to the judgment on the existence of legal relations in the instant previous suit by newly asserting it in the instant previous suit, i.e., seeking a judgment inconsistent with the judgment on the existence of the Plaintiff’s right to claim ownership transfer registration against the Defendant under the instant contract for sale and purchase, would be contrary to the res judicata effect

4. Nevertheless, the lower court determined that the instant lawsuit does not conflict with the res judicata of the final and conclusive judgment in the previous suit. In so doing, the lower court erred by misapprehending the legal doctrine on res judicata, thereby adversely affecting the conclusion of the judgment. The allegation contained in the grounds of appeal on this point is with merit.

5. Therefore, without further proceeding to decide on the remaining grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Sang-hoon (Presiding Justice)