The case holding that the res judicata of the final and conclusive judgment of the previous suit which requested the cancellation registration does not extend to the subsequent suit claiming the cancellation registration due to the cancellation of the contract.

The case holding that the res judicata of the final and conclusive judgment of the previous suit which requested the cancellation registration does not extend to the subsequent suit claiming the cancellation registration due to the cancellation of the contract.

Articles 202 and 204 of the Civil Procedure Act

Plaintiff 1 and one other

Defendant 1 and 3 Defendants, et al., Counsel for the defendant-appellant-appellee

Daegu District Court Decision 91Na4551 delivered on December 4, 1991

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

We examine the grounds of appeal.

1. According to the reasoning of the judgment below, the court below affirmed the judgment of the court of first instance which dismissed the plaintiffs' claims in this case against the defendants, such as the deceased non-party 1's heir, etc., which conflict with the res judicata of the judgment against the plaintiff 1 and the above non-party 1's Daegu District Court 81Na226, 305 provisional registration cancellation case, etc. as follows.

(A) As to the instant building against Nonparty 1, the Defendants’ decedent, the Daegu District Court 80Kadan411, the Plaintiff filed a lawsuit claiming the execution of the provisional registration in the name of Nonparty 1 and the registration of cancellation of the provisional registration and the registration of establishment of the right to collateral security under the name of Nonparty 1, which had been completed with respect to each of the instant real estate, as the Daegu District Court 80Kadan430, and the said judgment became final and conclusive on April 9, 1985, by dismissing the appeal and the application for the final appeal against the said judgment.

In the above case, Plaintiff 1 and Nonparty 1 were the cause of the claim, and instead Plaintiff 2 cancelled the provisional registration and mortgage registration made with respect to the site of this case for the purpose of securing the claim against Nonparty 2 (the owner of the site of this case and building of this case) and withdraw the application for the establishment registration of a senior mortgage received with respect to the building of this case at the time, Plaintiff 2 made the registration of transfer of ownership in the name of Plaintiff 1, a title trustee, and agreed to accept KRW 6,50,000 among the above Nonparty 2’s debt against Nonparty 1, and again made a provisional registration and the establishment registration on the site of this case in the name of the above Nonparty 1 to secure this, and the provisional registration of cancellation was made in the name of Nonparty 1, the ownership transfer registration in the name of Plaintiff 1, and the provisional registration of the claim for invalidity of this case was made in the name of Nonparty 1 as the owner of the above building of this case, and even if there was no initial obligation against Nonparty 2 as the above Nonparty 1.

(B) However, in making an agreement as above as the cause of Nonparty 1’s claim, the above provisional registration, etc. was cancelled prior to the cancellation of provisional registration and collateral security registration that was made with respect to the instant site to Plaintiff 2, but the above provisional registration, etc. was already cancelled prior to the above agreement. Thus, the above Nonparty 1 failed to perform the above obligation, and the above Nonparty 1 forged the registration document in the above Nonparty 2’s name and caused the transfer of ownership to Plaintiff 1. Thus, the above obligation to transfer ownership was not fulfilled properly, and the above provisional registration and collateral security registration of Nonparty 1 were cancelled after the date of the closing of argument in the above suit on the ground that the above Nonparty 1 failed to perform the above agreement, and thus, the above provisional registration and collateral security registration of Nonparty 1 were eventually cancelled after the date of closing of argument in the above suit, and Plaintiff 1 was the owner of the instant building site and building, and Plaintiff 2 sought the cancellation of each of the above provisional registration

(C) Since res judicata of the judgment is limited to all means of attack and defense that could have been asserted before the closing of argument in the previous suit identical to that in the previous suit, if the grounds exist before the closing of argument in the previous suit, this would also conflict with res judicata. However, even if the plaintiffs' assertion itself exist before the closing of argument in the previous suit, the grounds for revoking the claim lies before the closing of argument in the previous suit, and the subject matter of lawsuit in the registration of cancellation is the right to claim cancellation of the registration in question and the cause of claim that is the basis of its identity is invalid in the relevant registration. Therefore, the previous suit and the subsequent suit are the same as the means of attack and defense supporting the invalidation of registration, which is the cause of the claim, and thus, the res judicata effect of the judgment in the previous suit is identical to that of the plaintiff 1 in this case, and both the claims and causes of the plaintiff 2 are identical to those of the plaintiff 1 in the previous suit, and thus, the plaintiff 2 may also affect the plaintiff 2's claim for res judicata effect.

2. However, according to the records, even though the plaintiffs asserted as the cause of the claim through the attorney until the third day for pleading of the court below in this case, the plaintiffs dismissed the attorney prior to the fourth day for pleading of the court below, and withdrawn all previous arguments as the correction of cause for the claim and the statement in the preparatory document in the name of the principal stated on the fourth day for pleading of the court below, and they jointly agreed with the above non-party 1 as the cause for the claim in this case, and the plaintiffs jointly agreed with the above non-party 1 as determined by the court below. The above non-party 1 claimed cancellation of the contract and sought cancellation of the above registration by failing to perform their obligations under the agreement, and the plaintiff 1 did not act as the subrogation of the invalid cause. Accordingly, it is reasonable to deem that the plaintiff 2 directly cancelled the contract in this case by exercising the claim for removal of interference on behalf of the above plaintiff 1 in this case, rather than by exercising the right to cancel the registration under the above non-party 1's name.

3. If so, in the latter suit of this case, the plaintiffs are the exercise of the right to claim the removal of interference based on ownership, such as in the prior suit of this case, and the plaintiff 1 and the plaintiff 2 do not request the cancellation of each registration of this case under the above non-party 1 by subrogation of the above plaintiff in lieu of the above plaintiff 1, but they directly request the cancellation registration of provisional registration and the registration of collateral security in order to recover the security by the right under contract in accordance with the termination of the contract. Thus, the plaintiff 1 differs from the cause of the claim, and the plaintiff 2 is different from the cause of the claim and the party. Thus, the res judicata effect of the above final judgment of the previous suit cannot be affected by the subsequent suit of this case. Nevertheless, the court below erred in the misapprehension of res judicata effect of the previous suit by misunderstanding the plaintiffs' assertion on the cause of the claim of this case, thereby affecting the conclusion of the judgment of this case. Therefore, this point is with merit.

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 Song Man-man (Presiding Justice)