Whether the transfer registration can be claimed by asserting the invalidity of the cause of the transfer registration

If the registration of transfer of ownership in the name of the defendant is null and void of the cause, the plaintiff shall seek the cancellation of the registration and shall not seek the implementation of the procedures for the registration of transfer of ownership on the ground of the restoration of ownership.

Article 186 of the Civil Act

Supreme Court Decision 72Da1846, 1847 Decided December 26, 1972

[Defendant-Appellant] Korea Electric Power Corporation (Attorney Kim Byung-il, Counsel for defendant-appellant)

Plaintiff’s Intervenor (Attorney Kim Byung-il, Counsel for defendant-appellant)

Defendant 1 and 20 others, Counsel for the defendant Kim Dong-hwan et al., Counsel for the defendant-appellant

Seoul High Court Decision 77Na749 delivered on August 24, 1978

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

(1) As to the fact that Defendant 20’s attorney Lee Young-soo, and Defendant 3 et al., Counsel for defendant 17, defendant 18, Counsel for defendant 2, defendant 11, and defendant 12’s attorney Lee Il-young, Counsel for defendant 1’s attorney Kim Dong-hwan, and the ground of appeal by the defendant Republic of Korea litigation performer violates the prohibition principle under Article 240(2) of the Civil Procedure Act among the grounds of appeal by the defendant 240(2)

According to the court below's decision, the plaintiff had already filed the lawsuit of this case.

(1) If the plaintiff filed a lawsuit against the defendant 2 for the cancellation of the above part of the non-party 2's non-party 2's non-party 3's share transfer registration as to the non-party 2's share transfer registration as to the non-party 3's share transfer registration as to the non-party 2's share transfer registration as to the non-party 3's share transfer registration as to the non-party 2's share transfer registration as to the non-party 2's share transfer registration as to the non-party 2's share transfer registration as to the non-party 3's share transfer registration as to the non-party 2's share transfer registration as to the non-party 4's share transfer registration as to the non-party 2's share transfer registration as to the non-party 3's share transfer registration as to the non-party 1's share transfer registration as to the non-party 2's share transfer registration as to the above non-party 9's share transfer registration as to the above non-party 2's share.

(2) As to the lawsuit of this case among the grounds of appeal by Defendant 17 and Defendant 18, Defendant 2, Defendant 11 and Defendant 12, Defendant 12, Defendant 1 and Defendant 12, Defendant 1’s attorney Kim Dong-hwan, and Defendant 1’s litigation of this case in conflict with the res judicata.

According to the records, the plaintiff filed a lawsuit against the defendant 1 prior to the filing of the lawsuit in this case against the defendant 1 in relation to ( Address 1 omitted), 43/1237 of 1237 of 1237, 523 of 5426, 194/30 of 301 of 301 of 301 and 130/443 of 443 of 443 of 301 of 301 and 62A6398 of 62 and 633 of 443 of 443 of 302, which had been affirmed before the lawsuit in this case, and then dismissed the lawsuit in the appellate court, and thus, it can be recognized that the lawsuit in this case became final, but the part finalized as the judgment in this case cannot be viewed as being identical to the subject matter of the lawsuit in this case's lawsuit in this case's grounds for appeal.

(3) As to the purport that the registration of transfer without seeking cancellation among the grounds of appeal by the Defendants’ attorneys and the litigation performers is unlawful:

According to the records, the land in the annexed section of the judgment of the court below is owned by the plaintiff and the registration of ownership transfer is made in the name of the defendants due to the reason that the registration of ownership transfer is null and void. Thus, the defendants are aware that the plaintiff's ownership of the share corresponding to each of the above parts is confirmed and the registration of ownership transfer of the part is implemented. For the reasons stated in its reasoning, the court below determined to the effect that the ownership of the corresponding part of the road area of this case was fulfilled while the distribution is not finalized, and thus the original owner was returned to the plaintiff. Therefore, the registration of invalidity of registration of the corresponding part of the land area of this case, which was completed in the name of the distribution parties by the second distribution of the land reserved for the road of this case, shall be deemed to be the plaintiff's ownership, and the defendants, who are the current registered titleholder, are obligated to confirm that the above part is the plaintiff's ownership and perform the registration procedure for ownership transfer of that part.

However, since it is obvious that the registration of ownership transfer with respect to the above shares of the defendants is null and void in all, the plaintiff cannot request the defendants to cancel the registration with respect to the above shares out of the registration in his name, even after the registration in his name was made, for the restoration of ownership (see Supreme Court Decision 72Da1846, 1847 delivered on December 26, 1972). Therefore, the judgment of the court below to the effect that it is contrary to the above is affected by the misapprehension of the legal principles as to the right to claim ownership transfer registration, which affected the conclusion of the judgment, and since the appeal that contains the above purport was made with due cause, the decision of the court below should not be reversed without examining other grounds for appeal.

Therefore, the judgment of the court below is reversed and the case is remanded to the Seoul High Court, which is the court below, and it is so decided as per Disposition by the assent of all participating judges.

Justices Kim Tae-tae (Presiding Justice)