[1] Whether res judicata of the final and conclusive judgment which cited the claim for cancellation registration on the ground that the registration of ownership transfer is null and void on the ground that the registration of ownership transfer affects the existence of ownership of the real estate

[2] In a case where the judgment accepting the claim for cancellation registration becomes final and conclusive on the ground that the transfer registration of ownership is null and void, whether the person who has made the provisional disposition registration against the losing person after the closing date of argument in the final and conclusive judgment constitutes a successor after the closing date of argument in the judgment accepting the claim

[1] Even though the judgment accepting the claim for cancellation registration becomes final and conclusive on the ground that the transfer registration of ownership is null and void, the res judicata effect of the final and conclusive judgment only affects the existence of the claim for cancellation registration which was the subject matter of the lawsuit, and it does not extend to the existence

[2] In a case where Gap filed a lawsuit against Eul seeking cancellation of ownership transfer registration against Eul, and the judgment accepting it becomes final and conclusive, Byung filed a lawsuit claiming cancellation of ownership transfer registration against Eul as to the co-owned share under Eul's name after the closing date of argument in the judgment above, where Byung filed a lawsuit seeking cancellation of ownership transfer registration against Eul as to the above co-owned share after completing provisional disposition for preservation of ownership transfer registration prohibition for cancellation of title trust, Byung filed a lawsuit claiming cancellation of ownership transfer registration against Eul as to the above co-owned share after the closing date of argument in the judgment accepting the above request for cancellation registration, even though Byung filed a provisional disposition registration against Eul as to the above co-owned share after the losing party Eul after the closing date of argument in the judgment accepting the above request for cancellation registration, and as long as res judicata effect of the judgment accepting the above request for cancellation registration does not extend to the existence of the co-owned share ownership of Byung's co-owned share, Byung cannot be deemed as a successor after the closing of argument in the judgment accepting the above request for cancellation registration as a matter of course.

[1] Article 202(1) of the Civil Procedure Act / [2] Article 204(1) of the Civil Procedure Act, Article 171 of the Registration of Real Estate Act

[1] [2] Supreme Court Decision 84Meu148 delivered on September 25, 1984 (Gong1984, 1716) / [1] Supreme Court Decision 84Meu1792 delivered on August 19, 1986 (Gong1986, 1208) Supreme Court Decision 88Meu26482 delivered on December 21, 1990 (Gong1991, 580), Supreme Court Decision 92Da22121 delivered on November 10, 192 (Gong193, 81)

Plaintiff (Attorney Choi Jae-ho, Counsel for the plaintiff-appellant)

Defendant (Attorney Kim Won-won, Counsel for defendant-appellant)

Supreme Court Decision 94Da58988 delivered on August 20, 1996

Daegu District Court Decision 96Na11301 delivered on May 2, 1997

The judgment below is reversed, and the case is remanded to the Daegu District Court Panel Division.

The grounds of appeal are examined.

According to the reasoning of the judgment below, the court below rejected the plaintiff's provisional disposition on April 18, 1985 as to the real estate of this case which was originally registered as owned by the non-party 1 (hereinafter "related judgment") and the defendant's co-ownership share (each share 1/2), and held possession and use by specifying it, and brought a lawsuit against the plaintiff 2 on September 29, 1992 against the plaintiff and the defendant for cancellation of the ownership transfer registration as to the portion (A), which was held in the judgment of the court below, which was held on June 8, 1993, on which the plaintiff's co-ownership transfer registration as to the non-party 3 and the non-party 11, who was the title trustee of the above deceased's lawsuit, was declared to have no effect of the above provisional disposition registration as to the non-party 1's share transfer registration as to the above part (hereinafter "the above non-party 1's share transfer registration as to the non-party 1's co-ownership share for reasons of this case.

Even though the judgment accepting the claim for cancellation registration becomes final and conclusive on the ground that the registration of cancellation registration is null and void, res judicata effect of the final and conclusive judgment affects only the existence of the claim for cancellation registration which was the subject matter of the lawsuit, and it does not extend to the existence of the ownership itself (see, e.g., Supreme Court Decision 84Meu1792, Aug. 19, 1986). Thus, even if the plaintiff made a provisional disposition registration against the losing party after the closing date of argument in the relevant judgment, if he succeeded to the ownership by completing the registration of ownership transfer in the name of the plaintiff as to the co-ownership of the above part (A) as to the co-ownership of the defendant in the lawsuit in this case as to the existence of the plaintiff's ownership, unless res judicata effect of the relevant judgment extends to the plaintiff's successor after the closing of argument in the relevant judgment, the plaintiff cannot be deemed as a matter of course as to the existence of the ownership of the plaintiff's ownership. Accordingly, the plaintiff is not an interested party in the registration of cancellation or the above non-party 2.

Nevertheless, the court below rejected the plaintiff's assertion that the registration of transfer of ownership as to the co-ownership shares in the defendant's name as to the above part (A) was null and void without attaching the plaintiff's consent at the time of the application, and it is erroneous in the misapprehension of legal principles as to the subjective scope of res judicata, or in the incomplete hearing, which affected the conclusion of the judgment. The grounds for appeal pointing this out are with merit.

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices.

Justices Shin Sung-sung (Presiding Justice)