Busan District Court-2015-Gohap-48675 (2016.05.04)

If a final and conclusive judgment has been received in a lawsuit claiming cancellation of ownership transfer registration, the res judicata effect is not effective in the subsequent lawsuit claiming ownership transfer registration based on the restoration of title.

Since a delinquent taxpayer filed a lawsuit against the defendant seeking the cancellation of ownership transfer registration of the instant real estate against the defendant and the final and conclusive judgment was rendered in favor of him, filing a lawsuit against the defendant for the transfer of ownership for the purpose of restoring the same real name as that of the previous suit in lieu of AA by subrogation of the defendant is inappropriate.

Article 30 of the National Tax Collection Act: Revocation and Restoration of Fraudulent Act

2016Na52654 Registration for cancellation of ownership

Korea

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BB District Court Decision 2015Gahap48675 Decided May 4, 2016

October 13, 2016

November 10, 2016

1. To dismiss the instant lawsuit that has been changed in exchange at the trial;

2. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

The defendant shall implement the procedure for the registration of ownership transfer for each real estate listed in the attached list to AA based on the restoration of the true name of registration.

- The Plaintiff sought implementation of the provisional registration of the right to claim ownership transfer registration and the procedure for registration of cancellation of ownership transfer registration as stated below, and subsequently changed the purport of the claim in exchange for the first instance (see preparatory documents dated August 16, 2016).

2. Purport of appeal

The judgment of the first instance shall be revoked. The defendant will implement the procedures for the cancellation of each registration of ownership transfer registration completed on April 22, 2004 with respect to each real estate listed in the separate sheet by the BB District Court (CC) registry office of the Seoul District Court and the provisional registration of the right to claim ownership transfer registration completed on April 22, 2004 and each registration of cancellation of ownership transfer registration completed on June 2, 2006

1. Basic facts

This part of the court's reasoning is the same as the corresponding part of the judgment of the court of first instance. Thus, this part is cited by the main text of Article 420 of the Civil Procedure Act.

2. The plaintiff's assertion

AA sold each real estate listed in the separate sheet (hereinafter referred to as "each real estate of this case") owned by it to the defendant and completed the registration of ownership transfer, but the sales contract was cancelled due to the defendant's default.

The Plaintiff seeks implementation of the procedure for the transfer registration of ownership based on the restoration of real name for each of the instant real estate in subrogation of AA by using the national tax claim against AA as the preserved right.

3. Whether the lawsuit of this case is legitimate

ex officio, we examine the legitimacy of the instant lawsuit.

The right to claim for ownership transfer registration and the right to claim for cancellation of ownership registration, which are allowed in lieu of registration for cancellation, are to restore the title of the true owner, and its purpose is substantially identical, and all of the two claims are identical in its legal basis and nature. Thus, even if the former takes the form of registration for transfer registration and cancellation, the subject matter of lawsuit should be deemed to be the same in substance. Therefore, if a final judgment has been rendered in a lawsuit for cancellation of ownership registration, the res judicata effect shall also extend to the subsequent lawsuit for ownership transfer registration on the ground of the restoration of the true name (see Supreme Court en banc Decision 9Da37894, Sept. 20, 201). Meanwhile, where a party against whom a favorable judgment was rendered files a lawsuit identical to that of a final judgment rendered in favor of the other party to the previous lawsuit against the other party to the lawsuit, the subsequent lawsuit is unlawful as there is no benefit in the protection of rights.

In light of the above legal principles, the Health Board and AA had already filed against the Defendant in this case

The fact that a lawsuit seeking the cancellation of ownership transfer registration for each real estate has been filed and the final and conclusive judgment in favor of the defendant is identical to the facts stated in the foregoing basic facts. Therefore, the Plaintiff’s filing a lawsuit for ownership transfer registration against the defendant for the restoration of real name identical in substance with the previous suit by subrogation of AAA, which has already received a final and conclusive judgment in favor of the defendant

In this regard, the Plaintiff asserts to the effect that the judgment ordering the cancellation of the ownership transfer registration finalized in favor of the Plaintiff is not executed due to the existence of interested parties, and thus there is a benefit to seek a re-registration of ownership transfer for the restoration of authentic title. However, as long as the Plaintiff exercises the right of AA as the obligor, such circumstance alone alone cannot be viewed as different in the effect of res judicata and the benefit of protection

In addition, the obligee’s subrogation right can be exercised only when the obligor does not exercise the obligee’s right to the third obligor, so if the obligor has already exercised the obligee’s right at the time of exercising the obligee’s subrogation right, the obligee is not entitled to exercise the obligee’s right on behalf of the obligor (see Supreme Court Decision 92Da32876, Mar. 26, 1993). Since AA, the obligor, at the time of filing of the instant lawsuit, exercises the obligee’s right substantially identical to the instant lawsuit, the Plaintiff, the obligee, is not entitled to exercise the obligee’s right to exercise the obligee’s right.

Therefore, the lawsuit of this case is unlawful as it is filed by a person who is not qualified as a party, as well as there is no interest in protecting the rights.

4. Conclusion

Thus, the lawsuit of this case that is changed in exchange at the trial is dismissed as it is illegal.