Whether res judicata of the judgment in a previous suit which rejected a claim for ownership transfer registration of a specific part of a parcel of land reaches a subsequent suit seeking the ownership transfer registration of a certain portion of the whole parcel of land as the cause of the claim is identical to the parties concerned.

[Majority Opinion]

Although Party A filed a lawsuit against Party B by asserting that Party B purchased part of the land from Party B by specifying it, the claim was dismissed on the ground that there was no evidence that the subject matter was specified as the same part as Party A’s assertion, and the judgment became final and conclusive upon dismissal of both the appeal and appeal by Party A, where Party B filed a lawsuit claiming the registration of ownership transfer of the subject matter of lawsuit against Party B by asserting that Party B purchased a certain portion of the entire land, the previous and subsequent suit cannot be deemed the same as that of the subject matter of lawsuit, and thus, the res judicata effect of the previous suit cannot be affected by the subsequent suit.

[Separate Opinion]

A claim for registration of ownership transfer with respect to shares in a specific part of a parcel of land constitutes a part of the subject matter of a prior suit. However, this is merely a legal relationship that has been abstractly contained in the prior suit and thus, it cannot be deemed that the part of the prior suit’s pleading and judgment was included in the prior suit because it is not the subject matter of a prior suit or could have been specific in the prior suit. In addition, if it cannot be deemed that the parties could have obtained legitimate procedure guarantee with respect to the legal relationship, i.e., pleading as to the existence of the legal relationship or defense, and court’s judgment, it cannot be found that the ground for the means of attack and defense before the closing of pleadings, and in such a case, the res judicata effect of the prior suit does not extend to

[Dissenting Opinion]

Since it is clear that the registration of ownership transfer for a specific part of a certain parcel of land is the quantity of the claim for ownership transfer registration for a specific part, if the parties have won in favor of the claim for ownership transfer for a specific part of land and thereafter have filed for ownership transfer for all of the land including a specific part, it shall be dismissed on the ground that there is no benefit in the protection of rights for the part of the specific part without the need to further determine on the part concerning the specific part, and even though the request for ownership transfer for a specific part was subsequently rejected, if the right transfer for all of the land including the specific part is sought after the request for ownership transfer registration, it shall be dismissed on the ground that

Article 202 of the Civil Procedure Act

Supreme Court Decision 73Da1955 delivered on February 26, 1974, 73Da1474 delivered on March 12, 1974 (No. 22 ① Resident 93), 80Da445 delivered on July 22, 1980 (Gong1980, 13030), 91Da45356, 45363 delivered on April 10, 1992 (Gong192, 1547)

[Judgment of the court below]

Defendant Kim Jae-chul, Counsel for the defendant-appellant

Seoul High Court Decision 92Na65663 delivered on February 24, 1994

The appeal is dismissed.

The costs of appeal are assessed against the defendant.

We examine the grounds of appeal.

1. On the first ground for appeal

According to the records, on September 17, 1960, the plaintiff filed a lawsuit claiming the registration of ownership transfer against the defendant in Incheon District Court by asserting that he/she specified and purchased 1,500 of the land in this case ( Address 2,434; 2,265 square meters and 169 square meters of the same site after division) from the defendant on September 17, 1960, the plaintiff filed a lawsuit claiming the registration of ownership transfer against the defendant in this part of the land in this case (No. 88Da8578, Jan. 26, 1989) but the court of this case (No. 88Da8578, Jan. 26, 1989) concluded a contract with the defendant to purchase 1,50 square meters of the above land from the defendant on the above date on the ground that it is recognized as having been specific as part as alleged by the plaintiff, and that the plaintiff's appeal and appeal were dismissed, and that the judgment became final, again filed the registration of ownership transfer against the defendant.

In such a case, the previous suit and the instant suit cannot be deemed to have identical in the subject matter of lawsuit by different purports of each claim (see, e.g., Supreme Court Decisions 73Da1955, Feb. 26, 1974; 80Da445, Jul. 22, 1980; 91Da45356, Apr. 10, 1992; 91Da45363, Apr. 10, 1992). The res judicata effect of the previous suit cannot affect the instant lawsuit.

The decision of 73Da1474 delivered on March 12, 1974 is to be changed.

Therefore, the judgment of the court below to the same purport is correct, and there is no error in the misapprehension of legal principles as to res judicata such as theory of lawsuit. There is no reason to discuss.

2. On the second ground for appeal

In light of the records, we affirm the fact-finding by the court below that the plaintiff purchased 1,500 square meters out of the land of this case without specifying its location and without specifying its specific method, and it thought that the part 3,006 square meters in its decision were about 1,50 square meters, and occupied and used it. It is not erroneous in the incomplete hearing like the theory of lawsuit, or in the misconception of facts due to the violation of the rules of evidence, and there is no reason to discuss.

3. Therefore, the appeal shall be dismissed and the costs of appeal shall be assessed against the losing defendant. It is so decided as per Disposition by the assent of all participating Justices, except for a separate opinion by Justice Park Jong-chul as to the first ground for appeal and a dissenting opinion by Justice Park Jong-chul, Justice Kim Jong-sik, Justice Kim Jong-sik, and Justice Lee Yong-hun as to the first ground for appeal.

4. The Concurring Opinion by Justice Park Jong-chul is as follows.

The claim for the registration of ownership transfer for all shares of land, such as the claim for the registration of ownership transfer for a specific portion of land, is identical to the subject matter of a lawsuit within the scope of share for the specific portion of the land, and the reasons for the claim are as stated in the Dissenting Opinion by Justice Cho Jong-sung, Justice Kim Jong-sik, Justice Shin Sung-sung, and Justice Lee Yong-hun. However, even if the subject matter of a lawsuit is identical, the lawsuit of this case does not conflict with the res judicata of the judgment of the previous lawsuit, and ultimately, it is agreed with the conclusion of the Majority Opinion,

When a judgment becomes final and conclusive and conclusive, the judgment on the claim indicated in the judgment becomes final and conclusive, which regulates legal relations between the parties, so when the same case is re-convened, the parties cannot dispute the judgment by asserting against the judgment in the previous suit, and the court is unable to make any judgment contradictory to and promotion of the judgment, and such common nature or binding force given to the judgment in the final and conclusive judgment is res judicata. The reason why res judicata system is recognized is that the request is made to achieve the economy in the lawsuit by maintaining social order by granting legal stability to the public judgment of the national judicial authority on the dispute between the parties and prohibiting the same same dispute by maintaining social order and prohibiting the same repetition. This is because it is because it is not because the party to the lawsuit who was given the ability and opportunity to present and conduct the lawsuit on the existence or absence of legal relations which are the subject matter of the lawsuit, and then re-convens

Therefore, in determining the objective scope of res judicata, the objective scope of res judicata does not depend only on the identity of the subject matter of a lawsuit from the perspective of legal stability, but also on whether the parties to the subsequent suit have the opportunity to present arguments and to obtain a judgment from the court on the subject matter of a lawsuit which became the issue of the prior suit within the scope of the prior suit, from the perspective of procedural guarantee as seen above. In determining the time limit of res judicata, the parties may submit the judgment data to the court at the time of the conclusion of arguments in the prior suit to the subsequent suit and seek a judgment different from the prior suit by submitting the means of attack defense which the parties had existed before the conclusion of arguments in the prior suit in principle, but if a new cause occurs after the end of arguments in the prior suit, it shall be understood in the same context.

In this case, according to the records, although the plaintiff requested the registration of ownership transfer for the specific portion of the land in the prior suit to specify 1,500 square meters and filed the registration of ownership transfer for that portion, it cannot be deemed that the subject matter of the prior suit was specified as the same part as the plaintiff's assertion. On the other hand, if it is acknowledged that shares equivalent to the ratio of the specific portion of the above land are purchased within the litigation procedure even though the purchase of the above specific portion is not recognized, there is no evidence suggesting that the plaintiff's claim for the registration of ownership transfer for the above specific portion constitutes a part of the subject matter of the prior suit. Thus, even if the claim for the registration of ownership transfer for the above specific portion constitutes a part of the subject matter of the prior suit, it is merely a legal relationship abstractly distributed to the prior suit, and thus, it cannot be deemed that the aforementioned part of the prior suit was included in the pleading and judgment, and if the parties cannot be seen to have obtained the legitimate procedure guarantee, that is, the existence of legal relationship and the court's judgment as to the above portion of defense cannot be acknowledged.

Therefore, although the court below stated that the lawsuit of this case does not conflict with the res judicata of the judgment in the previous suit, the conclusion is justifiable, and therefore the defendant's appeal on this point is not justified. Thus, it can be said that there is no reason like the majority opinion.

5. Dissenting Opinion by Justice Cho Jong-sung, Justice Kim Jong-sik, Justice Shin Sung-sung, and Justice Lee Yong-hun is as follows.

The majority opinion stated that a claim for ownership transfer registration of a specific part of the land and a claim for ownership transfer registration of the entire land including the specific part cannot be deemed identical to the specific part. However, in light of the following reasons, it is difficult to agree.

Inasmuch as res judicata effect affects a judgment on the existence of legal relationship which is a subject matter of a lawsuit, it is naturally inconsistent with the res judicata effect of the judgment in a prior suit in a case where the same subject matter of a lawsuit is brought in a subsequent suit. In a civil suit, the subject matter of a lawsuit generally refers to the rights or legal relations of the adjudication which is the subject matter of a lawsuit, and it is also a view that our precedents have consistently maintained (see, e.g., Supreme Court Decision 72Da1430, Oct. 10, 1972; Supreme Court Decision 80Da164, Apr. 22, 1980; Supreme Court Decision 80Da1548, Dec. 22, 1981; Supreme Court Decision 84Meu1792, Aug. 19, 1986; Supreme Court Decision 84Meu2132, Mar. 10, 1987).

Therefore, as stated in the Majority Opinion, it is clear that the rights of the substantive law, which form the substance of the subject matter of a lawsuit, between the parties in a prior suit and the subsequent suit, are both the rights to claim the registration of transfer of the ownership of the instant land arising from the sales contract dated September 17, 1960 between the parties. Therefore, whether the claim for the registration of transfer of ownership of the entire land in a prior suit, which form the substance of the claim for the prior suit, and the claim for the registration of transfer of ownership of the entire land in a prior suit, is identical to the subject matter of a lawsuit within the scope of the specific part, depends on whether the claim is related to the whole claim and the partial claim, as stated in the divisible substantive law as to the same subject matter of a lawsuit.

However, the legal nature of sharing is that one ownership is divided in quantity and belongs to several persons (see Supreme Court Decision 64Da824, Dec. 15, 1964) or the majority opinion of theories that can be said to be the majority opinion of theories. The quantity of one ownership is no longer sufficient. Therefore, it is clear that the registration of ownership transfer concerning a specific part of a certain land is a part of the claim for ownership transfer concerning a specific part.

Therefore, if a party requests the registration of ownership transfer of all land including a specific part after winning the claim for ownership transfer registration, it shall be dismissed on the ground that there is no benefit in the protection of rights as to the specific part. In this case, despite the fact that the request for registration of ownership transfer of a specific part was rejected, the claim cannot be ruled differently from the previous part of the claim because it goes against res judicata effect. If the subject matter of lawsuit differs from the previous one, it would be difficult to render a judgment in favor of the previous part of the claim. However, even if the majority opinion does not change from the previous part of the claim, it would be difficult to see that the new part of the claim should be resolved in order to relieve the difference between the previous part of the claim and the new part of the claim for ownership transfer registration under the Civil Procedure Act, regardless of the previous part of the claim for ownership transfer registration, it would be difficult to see that the new part of the claim should be resolved in light of the nature of the substance and substance of the claim.

Therefore, the Supreme Court Decision 73Da1474 Decided March 12, 1974, which decided to be modified by the majority opinion, should be overruled another decision maintained and maintained.

Therefore, although the part of the claim for the registration of share transfer concerning the specific part claimed in the previous suit of this case should have been dismissed as a matter of course in conflict with the res judicata of the judgment in the previous suit of this case, the judgment of the court below which admitted it is unfair, and therefore, it is reasonable to reverse the claim for the registration of share transfer concerning the specific part claimed in the previous suit

Chief Justice Yoon-young (Presiding Justice) (Presiding Justice)