Whether the buyer of a real estate may seek the cancellation of the transfer registration made in the name of a third party by the final judgment.

Where a third party has completed the registration of ownership transfer with a final and conclusive judgment in favor of the seller when the real estate purchaser had not completed the registration of ownership transfer against the seller, the buyer may not request the cancellation of the registration of ownership transfer in the name of the third party on behalf of the seller, unless the final and conclusive judgment is void inevitably or revoked by litigation for retrial.

Article 404 of the Civil Act

Supreme Court Decision 80Da1836,1837 Decided December 9, 1980

Applicant

Respondent, Attorney Lee Jae-soo, Counsel for the defendant-appellant

Seoul High Court Decision 80Da1353 delivered on June 25, 1980

The appeal is dismissed.

The costs of appeal shall be assessed against the petitioner.

The grounds of appeal are examined.

In the event that a purchaser of real estate has filed a lawsuit against the seller and completed the registration of ownership transfer with a final and conclusive judgment in favor of the seller in the procedure for the registration of ownership transfer, the purchaser is unable to file a claim for the cancellation of the above third party's ownership transfer registration in the name of the seller on behalf of the seller in order to preserve the seller's right to claim ownership transfer registration unless the final and conclusive judgment is void or revoked by the lawsuit for retrial (see Supreme Court Decisions 80Da1836,1837, Dec. 9, 1980; 74Da2229, Aug. 19, 1975). In the same purport, the first instance court's decision, which the court below maintained, is justified in its reasoning that the above lawsuit was invalid by the final and conclusive judgment of the applicant, or that the above lawsuit did not constitute a ground for invalidation of the final and conclusive judgment, even if the final and conclusive judgment of the applicant violated the right to claim ownership transfer registration of the land in the name of the respondent.

Therefore, this appeal is without merit, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Ahn Byung-soo (Presiding Justice)