(영문) 대법원 2012.5.17.선고 2010다28604 판결

On June 26, 1974, the registration of ownership transfer was made on June 26, 1974 with respect to 5,109m forest B forest land (hereinafter referred to as "land in this case"), and each registration of ownership transfer was made on December 22, 1998 and C and D (hereinafter referred to as "C, etc.") on the ground of sale on December 22, 1997 with respect to each of the land in this case.

In the case (Seoul Central District Court 2008Gahap94375, Apr. 2, 2009) where the Plaintiff filed a claim against the Defendant for cancellation of the above registration of ownership transfer against the Defendant, C, etc. (hereinafter referred to as the “registration of ownership transfer”), the court rendered a judgment dismissing the claim against the Defendant on Apr. 2, 2009, and the claim against C, etc. (hereinafter referred to as the “Plaintiff”). The reason is that the Plaintiff’s prior owner of the land was presumed to have received the assessment of the land, and that the registration of ownership transfer in the name of the Defendant was null and void, the Defendant is obligated to perform the procedure of registration of cancellation, and on the other hand, the registration of ownership transfer in the name of the Plaintiff, such as C, etc. was completed on Jan. 22, 2008 after the lapse of 10 years from the date the registration of ownership transfer in the name of the instant land was completed, and thus, the judgment below became final and conclusive as follows (hereinafter referred to as the “the Plaintiff’s prior lawsuit”).

According to the above facts, since the registration of preservation of ownership in this case is invalid, the defendant is obligated to implement the registration procedure for cancellation of ownership preservation in this case's land ownership to the plaintiff who inherited the ownership in this case, and since the registration of transfer of ownership is recognized as valid on the ground that the registration of transfer of ownership in the name C, etc. in the preceding lawsuit in this case after the registration of transfer of ownership is based on C, etc. in the name of the defendant's name was completed, the defendant's obligation to perform the registration procedure for cancellation is ultimately impossible. Therefore, the defendant is obligated to compensate the plaintiff for damages due to nonperformance of the obligation to perform the registration procedure

Furthermore, the defendant's assertion that the defendant did not have any reason, is dismissed for the reasons indicated in its reasoning, and the scope of compensation for damages is that the defendant's obligation to implement the procedure for registration of cancellation of ownership preservation has reached an impossible performance on April 30, 2009, when the judgment against the plaintiff was final and conclusive in the above lawsuit, so the defendant is liable to pay the amount equivalent to the market price of the land at the time

2. However, it is difficult to accept the court below's finding compensation for damages on the ground that the defendant's obligation to perform the registration procedure for cancellation is impossible.

A. Where the owner claims the cancellation of registration or the restoration of authentic title against the title holder of a registration that does not conform to the substantive relationship based on his/her ownership, that right has the nature of a claim for exclusion of disturbance as a real right (Article 214 of the Civil Act). Therefore, if the owner loses ownership thereafter and thus becomes unable to file a claim for cancellation of the registration, this cannot be said to have the right to claim damages under Article 390 of the Civil Act against the obligor, such as cancellation of registration, on the ground that the realization of such right becomes objectively impossible. The right to claim damages on the ground of nonperformance stipulated in the above legal provisions may be extended or altered by maintaining the identity of the original claim in the context of the contractual or legal relationship established pursuant to the contract and the law. However, the right to claim cancellation of registration, etc. can no longer be seen as the basis for the occurrence of the right if the owner loses his/her ownership, and thus, its existence is no longer recognized in the first instance lawsuit, in view of the legal nature of the Plaintiff’s claim for cancellation of registration.

Unlike this, Supreme Court Decisions 2007Da17161 Decided August 21, 2008; 2008Da53638 Decided June 11, 2009, etc. premised on the premise that the performance of the right of cancellation registration, which is a real right claim, is recognized as a claim for compensatory damages due to nonperformance of the right of cancellation registration, are to be modified to the extent inconsistent with this Opinion.

B. Meanwhile, the Plaintiff asserted at the complaint to the following purport as the cause of the claim. In other words, the Defendant made a registration of preservation of ownership on the instant land owned by the Plaintiff in its own future by unlawful means. After that, the instant land was sold to C, etc. and C, etc. acquired by prescription, thereby losing the Plaintiff’s ownership. Accordingly, the Plaintiff sought damages against the Defendant due to the loss of ownership

On the other hand, the defendant argued that there is no liability for damages arising from a tort since illegality and causes are not recognized in completing the registration of preservation of ownership of this case. In addition, regarding the defendant's assertion of offsetting negligence, the defendant who committed an intentional tort cannot assert offsetting negligence. According to the above circumstances, according to the above circumstances, it is obvious that the cause of the plaintiff's claim is seeking compensation for damages arising from the defendant's tort, and there is no record that the plaintiff changed the cause of the claim thereafter.

Nevertheless, the court below found the plaintiff's cause of claim as compensation for damages due to "Impossibility of performing the duty of registration procedure for cancellation of registration of cancellation" as seen above and recognized the liability for damages.

C. Therefore, the court below erred by misapprehending the legal principles on compensatory damages due to the impossibility of the performance of the claim as a real right, and by misapprehending the legal principles on the matters not claimed by the parties in violation of the principle of disposition right.

3. Therefore, without examining the remaining grounds of appeal, we reverse the part of the judgment below against the defendant, and remand this part of the case to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices, except there is a separate opinion by the Chief Justice Yang Sung, Justice Lee Sang-hoon, and Justice Kim Yong-deok, and a concurrence with the Majority by Justice Yang Chang-soo

4. The Concurring Opinion by the Chief Justice of the Supreme Court, Justice Lee Sang-hoon, and Justice Kim Yong-deok argues that the part of the judgment below against the defendant should be reversed on the ground that the court below's decision should be reversed on the ground that the claim in this case seeking compensation for damages due to the loss of ownership should be judged on the basis of nonperformance of the obligation to implement registration procedures for cancellation of registration of cancellation of ownership

However, we cannot agree with the Majority Opinion that the lower court’s recognition of compensatory damages due to nonperformance of the right to claim cancellation registration, which is a real right claim, is unlawful for the following reasons.

A. Real rights are exclusive rights with the content of obtaining profits by directly controlling a specific and independent object. Real rights are the direct control over an object, and thus, do not include a claim for performance against another person by itself.

However, in the event that the realization of the substance of a real right is being interfered with or is likely to be interfered with due to the act of another person, the right to claim a certain act necessary for the removal or prevention of the disturbance (the act of cancellation or omission) is recognized, that is, the right to claim a real right, and the realization of the real right is guaranteed by such right to claim a real right.

Although a claim based on a real right is derived from a real right and it is recognized that the transfer is prohibited separately from a real right. However, in that it is a right that can claim a certain act toward a certain other party, the basic nature is different from a real right that is subject to control of an object, and its basic nature is different, and it is recognized as an independent claim with a real right, not a real right itself, but an independent nature as a right independent from a real right.

B. Therefore, the question of performance remains if the other party is liable for a certain act or omission by exercising a real right claim against a specific person. In other words, the right to claim is a right to claim a certain act or omission against a specific person. As such, whether the cause of the claim is a claim or a real right, and the obligation to perform the act or omission thereof arises, regardless of whether it is a claim or a real right. Accordingly, in the case of a claim based on a real right, it shall be deemed that the cause of delay and impossibility of performance of the obligation to perform the obligation may arise as well as in the case of a claim. Accordingly, there is no particular theory that Article 387 of the Civil Act shall apply mutatis mutandis to the delay of performance of a claim based on a real right. For instance, there is no particular theory that the infringing person is liable to return a movable to the owner of the movable in which the latter person claims the return of the movable property. Accordingly, if the movable property is lost due to a fire or any other cause, the obligation of the infringing person becomes in the status of delivery of the movable property.

In addition, the same holds true when the ownership of the original owner ceases to exist as it belongs to another person as well as when the ownership ceases to exist as the ownership ceases to exist due to the destruction of the property, and even if the ownership ceases to exist, the performance of the obligation to return the ownership and the compensation for transfer thereof can be recognized. The Supreme Court has taken the above view by allowing compensation for the impossibility of performance of the obligation to cancel the ownership transfer registration and the obligation to register ownership transfer for the restoration of real rights based on ownership ownership as a result of the cancellation of a contract by coercion (see, e.g., Supreme Court Decisions 2005Da29474, Sept. 15, 2005; 2007Da51703, Jan. 15, 2009). In addition, if the ownership transfer registration based on the telephone system, becomes invalid as the cause becomes final and conclusive, or if an unentitled person has completed the ownership transfer registration or the ownership transfer registration by unlawful means, the Supreme Court has decided 2015Da16081, supra.

However, even in the case of a claim, the claim may be extinguished due to the extinguishment, etc. of the subject matter, but it does not seem to be an interpretation theory denying the performance of the obligation to pay corresponding to the claim regarding the subject matter, or damages based on it. Rather, the compensatory damages for nonperformance shall be granted pursuant to Article 390 of the Civil Act, notwithstanding the extinguishment of the subject matter of payment. This legal doctrine is thought to apply mutatis mutandis to a claim based on a real right similar to a claim, and it does not need to be logical or inevitable to deny the obligation to return the subject matter or its ownership already occurred or the owner lost his/her right.

Where an owner loses ownership by transferring the object owned to a third party under circumstances where it is interfered with the actual control and management of the object owned by him/her, it is sufficient for the new owner to seek the prohibition or prevention of interference with the exercise of his/her ownership, and thus, it is not necessary to maintain the right to seek the prohibition or prevention of interference or obligations corresponding thereto (see, e.g., Supreme Court en banc Decision 68Da725, May 27, 1969).

However, in a case where the possession or registration of an object is transferred to a third party due to the act of the infringer, and the ownership of the original owner is extinguished, the need for the former owner to claim the return of the ownership of the object is not considered to have been lost solely on the ground that such ownership was lost. The right to claim the return of the ownership of the object is based on the ownership, but the right to claim the return of the ownership may be recognized as independent claim as seen earlier, and as such, the right to claim the return of the ownership may be recognized as independent of the ownership, it does not necessarily mean that the extinction of the ownership is the same after the claim has occurred. Rather, if it is not possible for the infringer to obtain the ownership again and return the ownership of the previous owner, it is reasonable in terms of the detailed nature of the real right or the protection of the right, and the right to claim the return of the possession or registration may be effective at this time. As can be seen, even if the infringer is unable to perform his/her obligation due to the cause attributable to him/her even though he/she had fulfilled his/her duty to return the ownership.

D. In this regard, it is not necessary to grasp the concept of loss of ownership and impossibility of performing the obligation to return ownership.

In a case where ownership belongs to a third party and is relatively extinguished due to an act committed by the infringing person liable for the return of an object, from the perspective of a tort, it can be deemed that a tort committed by the infringing person is committed. However, in terms of the duty to return the object, the infringing person continues to bear the duty to acquire ownership again from a third party and return it to the original owner, but the claim for cancellation of registration filed against the third party becomes final and conclusive.

If the possibility of performance is entirely denied, it is possible to interpret that the obligation reaches the impossibility of performance, and it is possible to interpret the compensatory damages as of the time of performance, and the precedents have adopted these opinions (see, e.g., Supreme Court Decisions 2005Da9474, Sept. 15, 2005; 2007Da17161, Aug. 21, 2008; 2007Da36445, Jun. 12, 2008; 2007Da51703, Jan. 15, 2009).

E. According to the Majority Opinion, the compensatory damages for nonperformance of a real right claim is entirely impossible, and only a claim for damages due to tort, such as loss of ownership, can be filed.

(1) In general, the compensatory liability due to nonperformance and the liability for damages due to tort are separate and mutually complementary systems different from the requirements. The most fundamental method of protection against infringement on ownership is to restore the infringed ownership to the original state, and the liability is insufficient to protect the person holding a real right solely with respect to monetary compensation. Here, there is a substantial ground for recognizing a real right claim claiming the return of ownership, and furthermore, to restore the ownership to the original state. In other words, in a case where the return of ownership is impossible, it is necessary to recognize compensatory compensation in lieu of the right to claim the return of ownership or the duty to return the ownership, separate from

In addition, the liability for compensatory damages caused by nonperformance of obligation bears the burden of proving the absence of cause attributable to the obligor in accordance with the legal principles on liability for nonperformance, while the claimant in principle bears the burden of proving the cause attributable to the other party. In addition, the ten-year statute of limitations is applied to compensatory damages caused by nonperformance of obligation, as in general claims, while the ten-year statute of limitations is applied to compensatory damages caused by tort, the short-term statute of limitations is applied to the damages

In light of this, liability for damages caused by a tort can be more unfavorable than seeking compensatory damages due to the impossibility of performance of a claim for property rights. Accordingly, the damages claim itself may not be acknowledged as a result of failure to prove the requirements of a tort or extinguishment by prescription. As such, in the case of the Supreme Court Decision 2005Da29474 Decided September 15, 2005, supra, the damages claim by a tort is not sufficient to protect the real owner. In fact, the damages claim by a tort was dismissed due to the lapse of the extinctive prescription period, while the damages claim by a tort was accepted due to the impossibility of performance of the obligation to cancel the registration of ownership transfer based on a real right right, and thus the real owner could be relieved. A real right is an exclusive and absolute right, and a real right is more strong than a claim, and a real right claim is recognized as broadly to protect a real right. Nevertheless, if a compensatory damages claim recognized as the validity of a claim is denied from a real right claim, this would rather be difficult to treat it as more neglected to protect a real right.

Therefore, as in the case of a real right claim, there is a need to recognize a compensatory liability arising from the impossibility of performance of a real right claim, apart from the tort liability due to the loss of a real right itself.

(2) In addition, in a case where the loss of ownership and the impossibility of performing the duty to return the owned property are different as seen earlier, the time of loss of ownership and the time of impossibility of performing the duty may vary, and thus, the starting point of the statute of limitations or the starting point of the amount of damages are different. Therefore, whether to recognize compensatory damages due to nonperformance of the duty to return

In the meantime, the Supreme Court has interpreted the concept of non-performance of the claim and its point of time faithfully to the protection of creditors, and it has been interpreted by expanding the legal principle to the claim as a real right, thereby recognizing compensatory damages in lieu of the ownership at the time of impossibility of performance or execution. This seems to be due to the fact that the liability for damages caused by a tort is not sufficient to protect the owner.

Even though only the claim for damages due to the loss of ownership is allowed as the majority opinion, it may be presented that the time of the loss of ownership is not regarded as the time of the loss of ownership in order to protect the owner, but can be seen as the time of the conclusion of the judgment of the loss of ownership in the previous precedents similar to the time of the loss of ownership. However, regardless of the loss of ownership, it is doubtful whether it would be possible in terms of the legal principles to allow the loss of ownership, i.e., the loss of ownership, to continue the existence of ownership, and rather, to maintain the theory of allowing compensation for the loss due to the impossibility of performance.

(3) Furthermore, in a case where a creditor files a claim for the registration of ownership transfer of real estate on behalf of the claimant for performance, and files a lawsuit by combining the claim for payment of money on the premise that the claim for payment of money exists, the subject claim is deemed a claim for compensatory damages in advance in preparation for a case where this is impossible before the judgment becomes final and conclusive or where it becomes impossible to execute the claim after the judgment becomes final and conclusive, and has been equally handled in the case of a claim for cancellation based on a real right claim (see, e.g., Supreme Court Decisions 2005Da39013, Jan. 27, 2006; 2011Da3066, 30673, Aug. 18, 2011). As such, the subject claim recognized in the precedent is able to perform its obligation on the premise of the original claim for payment.

It seems that the nature of the claim is different from the claim for damages caused by the illegal act starting from the extinguishment of the claim for benefits.

However, if the performance of a claim based on a real right is denied as in the majority opinion, a claim based on a real right cannot be permitted. Ultimately, unlike the case of a claim for registration of transfer of ownership, a claim for registration of cancellation, which is a claim based on a real right, there is no way to execute compensatory damages immediately at the time of impossibility of performance or in the event of impossibility of execution or in the event of impossibility of execution with the judgment on compensatory damages along with the judgment on the claim for registration of cancellation, and it is questionable whether it is reasonable to treat a claim based on a real right as a large right and a claim based on a real right as such more disadvantageously unfavorable than in the case of a claim.

F. In particular, in the instant lawsuit, the right to claim for registration of cancellation at issue due to the impossibility of performance in the instant case needs to be paid due to the claim for res judicata which has become final and conclusive in the instant lawsuit. Even if the Plaintiff’s ownership has been lost due to the completion of the prescriptive acquisition of the registry, such as C, prior to the instant lawsuit, insofar as the judgment in favor of the Plaintiff became final and conclusive in the instant lawsuit, which is a real right claim against the Defendant, and res judicata effect has occurred, the Defendant cannot assert the absence or extinction of the right to claim for registration of cancellation on the ground of the extinguishment of ownership, which is the cause arising before the closing of argument. Even if the legal relationship with the res judicata effect of the final and conclusive lawsuit is not the subject of the subsequent lawsuit, the determination by the final and conclusive judgment of the previous lawsuit would still affect res judicata effect against the Defendant in the subsequent lawsuit (see, e.g., Supreme Court Decisions 94Da4684, Dec. 27, 1994; 2003Da1329329, Jan. 129, 2009).

However, if the execution of the judgment is impossible and the compensation for damages is denied, it would be recognized that the non-existence or extinction of the right to claim the cancellation of registration of this case, which should be interrupted by res judicata effect, would result in a violation of the general theory on res judicata in civil litigation.

G. In conclusion, it is not legally impossible to recognize compensatory damages for claims that have already been established regardless of whether the rights that form the basis of the claim are claims or real rights, and whether to allow such claims or not is a matter of law and policy decision. Therefore, the Supreme Court's prior opinion to protect real rights that are not available for claims is proper in terms of concrete feasibility, in cases where res judicata has occurred through a final and conclusive judgment, it seems more true in terms of specific feasibility, and in cases where res judicata has occurred through a final and conclusive judgment, and there is no theoretical and practical need to withdraw from the protection of real rights or real rights holders.

Therefore, in the preceding lawsuit of this case, since the obligation to perform the registration procedure for cancellation of registration of cancellation of ownership preservation, which is the original obligation for payment, has become final and conclusive, it is possible to recognize the liability for compensation due to the impossibility of performance or non-execution, and the part of the judgment of the court below that held to the same purport is just, and it

For the same reason, I agree with the conclusion of the majority opinion, but express my separate opinion as to the argument.

5. As to the right to claim cancellation of registration with real right concurring with the Majority Opinion by Justice Yang Chang-soo, we express the opinion supplementing the Majority Opinion as follows.

A. The issue is that the provision on the convenience of claims is applied mutatis mutandis to a real right claim unless it is contrary to the nature of the right of claim. The problem is whether the provision on the convenience of claims should not be applied mutatis mutandis specifically to a real right claim, and if the provision on the liability for nonperformance on the ground of impossibility of performance individually speaks in this case, it does not go against the nature of a real right claim. The majority opinion is that the application mutatis mutandis is not permitted against the nature of a real right claim. Thus, the problem is not resolved only by the above general explanation as to the provision on the convenience of claims applicable to a real right claim.

B. The Concurring Opinion states that “a claim may, even in the case of a claim, be extinguished due to the cause, such as the extinguishment of the claim, but it does not seem to be an interpretation theory denying the performance of the obligation to pay corresponding to the claim on the subject matter, and rather, compensation for the impossibility of performance of the obligation to pay damages is allowed pursuant to Article 390 of the Civil Act.” This legal principle is "It is thought that the claim for a real right can also be applied mutatis mutandis as it is," and it does not mean that denying the obligation to return the subject matter or its ownership already occurred due to the extinguishment of the subject matter of a real right or the loss of the owner of the subject matter of a real right, or that denying the performance of the obligation to pay for the subject matter or its ownership, which is inevitable on a legal basis (Article 4.3).”

However, for example, even if the seller’s liability for transfer of ownership or delivery was lost in the sales contract, it does not immediately extinguish the seller’s obligation for transfer of ownership or delivery. The seller’s obligation still remains as long as the buyer is liable for nonperformance due to nonperformance of his/her obligation. It is compared with the fact that the seller’s obligation is the core of “claiming the performance of payment to the gold obligee by the obligor,” and the benefit related to the subject matter is already reverted to the owner or any other real right holder in the ownership and other real rights. Therefore, in case where the obligor fails to perform the payment due to the obligation, namely, where the obligor fails to perform the obligation due to the nonperformance of obligation, it is necessary for the obligee to achieve the property status, which would have been incurred if the obligor properly performed the obligation, to demand that the obligor realize the obligation in accordance with the original meaning of the obligation. Accordingly, this is premised on the existence of the obligation. However, in the case of nonperformance of obligation, it is not permitted by virtue of the original claim for payment without permission, and is converted into compensation for damages.

The existence of such obligation is clearly revealed when the buyer, who is the obligee, selects the rescission of the contract with the different content of the liability for nonperformance. In this case, only when the buyer expresses his/her intent of rescission of the contract, the sales contract becomes null and void, and thereby, the seller’s obligation is extinguished along with the buyer’s obligation to pay the purchase price. In other words, the seller’s obligation continues to exist despite the loss of the object, and the effect of rescission is extinguished only when the seller expresses his/her intent

However, a claim for exclusion of disturbance and other claims based on real rights (hereinafter referred to as "the discussion will proceed in front of the claim based on ownership only) are entitled to a claim against a person who provides the cause of interference in real rights if the owner fails to enjoy all benefits related to the object which has already been legally reverted. In other words, a claim based on real rights is a means of protecting rights to ensure the objective realization of the original state of interference. In other words, even though a claim based on a real rights is in the form of such phenomenon, it is not different from the second claim for protection if it is recognized as an act of ownership in relation to the situation where the realization is being interfered with. In that sense, in the sense that the ownership is a right in relation to the extension of the "human rights protection", the claim for payment from the beginning of the sense that the ownership is a right in relation to the extension of the "real rights protection", the basic orientation is different. Therefore, if the owner loses ownership, it is no longer necessary to recognize it, and it is also the same as the case where the article is terminated or terminated.

If a thing is destroyed, the ownership of the thing shall be terminated immediately. The "control, which is the core of ownership, is based on the premise that the thing is subject to it, and ownership without the subject matter is the order of appearance. Since a real right claim is recognized for the smooth realization of ownership, there is no reason for existence of a real right claim, unless there is ownership. This is no reason for existence of a real right claim. This is the so-called relative extinction, such as where ownership of the thing is absolutely extinguished as it is destroyed as well as where ownership of the thing is transferred to a third party and the previous owner loses its ownership. This is no reason for doubt as the Supreme Court en banc Decision 68Da725 Decided May 27, 1969 clearly stated.

Therefore, even if the owner of a real estate has a right to claim cancellation of the registration against the person who registered the ownership in bad faith, that is, a right to claim cancellation of the registration as a right to claim cancellation of the registration of the ownership, if he did not have ownership any more, his right to claim cancellation of the registration immediately becomes extinct. This right to claim cancellation of the registration naturally results from the nature of the right to claim cancellation of the ownership from the ‘right to claim real right from the ownership', i.e. the right to achieve the smooth realization of the ownership as seen earlier.

As can be seen, the right to claim cancellation of ownership is extinguished due to the loss of ownership. It differs from the fact that the subject matter of a sales contract is destroyed or the seller becomes unable to perform his/her obligation such as transfer of ownership, etc. by transferring it to a third party, and that he/she is no longer legally responsible for compensating the buyer for transfer of ownership. Thus, the obligation to cancel the registration is lost rather than the fact that the seller is unable to perform his/her obligation to deliver the subject matter to the owner, and it is no longer impossible for the illegal occupant to transfer his/her possession to a third party. However, even if his/her obligation to return the subject matter to the owner to the owner to the third party, it is merely impossible for him/her to fulfill his/her obligation to claim the return of the subject matter, and it is no longer feasible to discuss his/her obligation to claim the return of ownership in the name of the original owner to the extent that his/her ownership was extinguished. As such, it cannot be seen that there is no need for the independent owner to claim the return of ownership in the name prior to the transfer of ownership.

However, with respect to a seller who bears the obligation such as transfer of ownership from the beginning to a third party, he/she may again acquire the ownership transferred to a third party for the performance of his/her obligation and then demand the buyer to transfer it (see the main sentence of Article 570 of the Civil Act). However, on the ground that such obligation has been occupied only without any such obligation (which is to be discussed only once) and is merely the other party to the claim for the transfer of possession to a third party, there is no ground to require the former owner to obtain the return of possession from the person who is not the other party to the claim for the return of possession by transferring possession to a third party. The former owner shall seek the delivery of the object against the current illegal occupant, and if he/she intends to avoid the repetition of such lawsuit, it is sufficient to devise other remedy such as the

D. Furthermore, the Concurring Opinion argues that a real right is more strong than a claim, and if a compensatory liability recognized as the validity of a claim is denied from a real right claim, it would rather be difficult to understand by dealing with the protection of a real right more neglected than a claim.

(1) However, "the compensatory liability recognized by the effect of the claim" is recognized only in relation to the debtor.

It is basically based on the detailed effect that ownership and other real rights are more strong than claims. Therefore, in principle, an owner may enforce his/her legal authority on anyone in principle, and if a person who infringes or is likely to infringe his/her rights, in claiming the smooth realization of ownership, is a person who is entitled to seek the smooth realization of ownership, he/she may also demand the exclusion or prevention of the disturbance. However, an obligee may demand the compulsory realization of a claim and the responsibility for default only on the part of an obligor when his/her claim is not fully realized, i.e., when his/her obligation is not fully realized, and a third party, other than the obligor, who is not the obligor, cannot be held liable for damages on the ground of tort, unless there are other special circumstances.

On the other hand, in relation to an obligee, where the obligation is not fully realized due to his/her nonperformance (Article 389 of the Civil Act), the obligee has a variety of legal powers including compulsory realization of the obligation (Article 389 of the Civil Act), damages (Article 390 of the Civil Act), and liability for nonperformance of obligation such as rescission of contract (Article 544 of the Civil Act), etc. In addition, it cannot be readily concluded that the legal authority of the owner against the actual partner can be said to be more serious than the legal authority of the obligor. As stated in the Concurring Opinion, it should be deemed that the latter is stronger in terms of proving the cause attributable to the obligor or the period of extinctive prescription, etc.

(2) The issue here is not different, but rather, whether to recognize the unique remedy for nonperformance, such as compensatory damages, due to nonperformance of performance, which is recognized only for one debtor, for the sake of the claimant's right to claim a real right which is affirmed based on the detailed competence of ownership as above. And this problem should be respond to negatively, and if a real right claim is extinguished due to loss of ownership, etc., in principle, it is reasonable to hold the former owner liable for tort generally permissible for tort even to a person who is not a party to the claim. Above all, recognizing special legal remedy recognized only in relation to the debtor who did not have a claim relationship, would result in the harsh burden of unfairly strict liability solely on the ground that there was a temporary infringement of ownership. This would be the most important reason to deny all liability due to impossibility of performance in the case as seen above. In addition, the reason that the above water should be negative is presented as seen earlier.

E. As suggested by the Concurring Opinion, I think that the claim under substantive law, such as the Supreme Court Decision 92Da4581 Decided May 12, 1992, should be denied on the ground that the claim under a real right should be denied on the ground that the claim under a real right should be denied for the same reason as the claim under a compensatory damages based on the impossibility of performance.

In addition, the Concurring Opinion has recognized the right to claim for cancellation registration as a real right claim.In other words, the Concurring Opinion has recognized a precedent that combines a claim for monetary payment such as a claim for damages in preparation for the impossibility of performance or execution of a claim for cancellation registration.

However, as mentioned in the Concurring Opinion, the so-called "a claim" as mentioned above has been discussed in entirely different ways from the issues discussed in this case, and the above forms of claims have been discussed mainly on whether the lawsuit is permitted. Moreover, since the Supreme Court Decision 75Da450 Decided July 22, 1975, Supreme Court Decision 75Da39013 Decided July 1, 2006, Supreme Court Decision 2005Da39013 Decided July 27, 2006, the precedents have consistently taken the attitude of allowing the consolidation of the current and future claims related to registration, namely, the current registration, and the future claims for payment. In addition, the specific legal meaning of the "non-performance" or "non-execution" as a real right claim, but from the perspective of the majority opinion, the claim for cancellation of registration as a real right claim and the claim for damages caused by tort is not permitted as a simple combination.

Therefore, I cannot agree with the majority opinion that it is easy for the Concurring Opinion to readily conclude that the 'claim' as a form of combination of claims as above is not permissible with respect to the claim as a real right.

F. In addition, the Concurring Opinion argues that since the ruling authorizing the plaintiff's right to claim for cancellation registration in the preceding lawsuit of this case became final and conclusive and the res judicata has occurred in relation thereto, "the plaintiff is entitled to exercise the right to claim cancellation registration against the defendant, and the defendant is obligated to register cancellation, and further is obligated to accept the execution of the final and conclusive judgment, so granting compensatory damages due to the plaintiff's failure to execute the final and conclusive judgment substantially due to the plaintiff's loss against C, etc. is reasonable in legal principles. In addition, if the judgment is impossible to execute the judgment and damages incurred therefrom are denied, this would result in recognizing the non-existence or extinction of the right to claim for cancellation registration of this case which should be interrupted by res judicata effect, and it would result in a violation of the general theory on res judicata effect in the civil lawsuit (see the above 4. f., the foregoing)."

(1) However, according to firm precedents and common theories, res judicata of a final and conclusive judgment rendered against the defendant in the preceding lawsuit of this case is to have the effect of litigation law. According to this, res judicata is solely effective under the Civil Procedure Act, and it is understood that it is irrelevant to the legal relationship of substantive law. In other words, it is prohibited that a final and conclusive judgment may not be made by a court in a separate lawsuit for the unification of a judgment of a trial agency.

Therefore, even if the Plaintiff obtained a final and conclusive judgment against the Defendant regarding his claim for cancellation registration in the preceding lawsuit of this case, the legal nature of the Plaintiff’s claim for cancellation registration does not change as a claim for cancellation registration based on the relationship of claims, for instance, if the legal nature of the right to claim cancellation registration does not change as a claim for cancellation registration based on the relationship of claims. Moreover, even if it is based on the premise of claims, the claim for damages arising from nonperformance of certain obligations differs from the claim for performance of the obligation itself, and as such, even if the existence of the obligation in the prior lawsuit of this case becomes final and conclusive

Therefore, the above final and conclusive judgment does not require that the plaintiff has a claim for compensatory damages under Article 390 of the Civil Act on the ground that the right to claim for cancellation of registration is impossible. Determination as to whether the right to claim for compensatory damages is recognized is beyond the scope of res judicata in which the final and conclusive judgment of the preceding lawsuit has become final and conclusive. The separate opinion argues that the majority opinion stated that the foregoing assertion by the separate opinion is contrary to the general theory on res judicata in the civil lawsuit, but rather, is contrary to the general theory on res judicata in the civil lawsuit.

(2) From a substantial standpoint, the argument such as the Concurring Opinion is unreasonable.

Of course, in the preceding lawsuit of this case, the plaintiff's right to claim cancellation against the defendant was recognized by a final judgment. However, this should not be recognized. The plaintiff already lost ownership of the real estate at the time of closing argument at the fact-finding court in the preceding lawsuit of this case, and therefore, in substance law, the plaintiff did not have the right to claim cancellation registration against the defendant based on ownership. Therefore, if the defendant asserted this point in the preceding lawsuit of this case, the plaintiff did not win the lawsuit against the defendant (the Supreme Court Decision 94Da7348 delivered on March 3, 1995 is immediately decided to the same purport, and the plaintiff's claim is dismissed). This decision of April 12, 1991 is related to this case's final judgment which was delivered by the defendant due to the lack of sufficient defense as above, and it is not necessary to make a single confirmation of legal relationship, but is an ordinary co-litigation, and it cannot be concluded that there is a conflict in the reasoning that the court's argument or defense as a common co-litigation in the following common litigation.

Therefore, it cannot be questionable whether "the defendant is obliged to register cancellation, and further has the obligation to accept the execution of the final judgment" merely with the fact that he obtained a final judgment on the right to claim cancellation of registration against the defendant (the same is applicable as seen earlier) can be said to be "legally reasonable to allow compensatory damages due to the plaintiff's loss to the plaintiff's C, etc. that it is substantially impossible to enforce the final judgment substantially due to the plaintiff's failure to enforce the final judgment."

G. Meanwhile, in a case where the right to claim for cancellation of ownership transfer registration based on ownership is sought due to the cancellation of a contract made by duress, etc. or the claim for cancellation of ownership transfer registration based on such contract, the separate opinion states that the Supreme Court has consistently allowed compensatory damages on the ground that the right to claim for cancellation registration based on ownership was impossible (the last sentence part of the above 4.B.). However, if the contract, etc. which caused the registration is cancelled by duress, etc., if the former owner conducts the registration of ownership transfer based on such contract, it is possible to return the ownership as well as return of the ownership. However, even if the former owner has not completed the registration of ownership transfer based on such contract, it is possible to make the right to claim restitution based on the ownership as well as the right to claim cancellation due to the extinction of the legal cause such as the cancellation of the registration of ownership transfer based on the contract, etc. (the separate opinion cannot be readily concluded as the right to claim cancellation by the previous Supreme Court en banc Decision 92Da135394 Decided September 14, 1993.