Whether res judicata effect of the final and conclusive judgment ordering cancellation of registration of ownership transfer affects the existence of ownership (negative)

Even though the judgment ordering the cancellation registration of transfer of ownership on the ground that the exchange contract is null and void becomes final and conclusive, the res judicata effect of such final and conclusive judgment does not extend to the lawsuit seeking confirmation of ownership premised on the validity of the above exchange.

Article 202 of the Civil Procedure Act

Supreme Court Decision 71Da632 delivered on May 24, 1971, 71Da1727 delivered on September 28, 1971, 72Da1430 delivered on October 10, 1972, 72Da1436 delivered on September 12, 1973, 72Da746 delivered on September 27, 1975, 79Da1218 delivered on September 25, 1979, 80Da164 delivered on April 22, 1980

Plaintiff 1 et al. and 17 Plaintiffs’ attorneys Han-chul

The legal representative of the Republic of Korea and the Minister of Justice shall transmit the litigation performers of Lee Jong-won and take advantage of interest

Seoul High Court Decision 79Na2814 delivered on May 2, 1980

The judgment below is reversed and the case is remanded to Seoul High Court.

The plaintiffs' representatives' grounds of appeal are examined.

(The first and second points shall be considered together)

1. According to the records, prior to filing a lawsuit against the defendant for the confirmation of the ownership transfer of this case against some of the plaintiffs and their successors, the defendant filed a lawsuit against the plaintiff for the cancellation of the ownership transfer registration of this case (the Busan District Court 70Da3618) and finally ordered the procedure for the cancellation of the ownership transfer registration of this case under the plaintiffs' name by the Supreme Court Decision 75Da1265 Decided June 23, 1978. Meanwhile, even if the plaintiffs and their successors lose the judgment ordering the cancellation of the ownership transfer registration of this case under the plaintiffs' name of this case in the previous lawsuit, it is clear that the defendant's country was not authorized to dispose of this case's land, which is the object of the lawsuit, and the head of Busan District Office (the Busan District Court 70Da3618) concluded the registration of the ownership transfer of this case's land under the title of the plaintiff 1 and the head of Busan District Office 5's title transfer registration without the authority of disposal of this case's land.

On the other hand, since res judicata effect of a final and conclusive judgment only affects the conclusion of the judgment on the existence of legal relations asserted as an object of lawsuit, that is, that is, it does not affect the existence or absence of legal relations which are the premise thereof, the judgment which cited the claim for cancellation of ownership transfer registration on the ground that ownership is not lawfully acquired, the res judicata effect of the final and conclusive judgment only affects the existence of the claim for cancellation registration, and it does not affect the existence or absence of ownership in the underlying real estate itself, but it is a consistent decision of the party members (see Supreme Court Decisions 71Da632 delivered on May 24, 197, 71Da1727 delivered on September 28, 1972, 72Da1430 delivered on September 10, 1973, and 72Da1436 delivered on September 12, 1973, 207Da17819 delivered on May 27, 2975).

2. However, if the res judicata effect of the registration of cancellation of ownership transfer, which is the previous lawsuit, cannot be affected by the lawsuit seeking confirmation of ownership because it is the subject matter of the lawsuit, the above Busan Construction Office's right to dispose of the land is not established, and even if the disposition of disposal is not indicated in the order, it is clear in light of the legal principles of res judicata as to the plaintiffs' right to dispose of ownership in the lawsuit. According to the records, if the defendant asserts that the head of the above Busan Construction Office did not have the right to dispose of ownership, and it is hard to confirm that the plaintiff's right to dispose of the land was not established by the above Busan Construction Office's legal principles as to the plaintiffs' right to dispose of ownership, and it is hard to find that the above plaintiff's right to dispose of the land was not established by the law of res judicata effect, and it is reasonable to present the legal principles as to the plaintiffs' right to dispose of ownership as alleged in Gap evidence No. 8-1 (No. 9) and evidence No. 9-2 (No. 13).

Therefore, the judgment of the court below is reversed and remanded. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kang Young-young (Presiding Justice)