Whether it is against the res judicata effect of the previous suit to refuse the removal of a building on the ground of the land lease that existed before the date of the closing of argument in the new suit seeking the removal of the building on the ground in the previous suit seeking a removal of the building on the ground, which was

Since res judicata of a judgment on a claim for the transfer of land, which is a prior suit, is limited to the existence of the Plaintiff’s right to claim the transfer of land against the Defendant as of the date of the closing of argument in the prior suit, if the right to claim the transfer of land exists prior to the date of the closing of argument in the prior suit, the said right to lease is merely a means of defense disputing the right to claim the transfer of land, and thus, in the new suit seeking the removal

Article 202 of the Civil Procedure Act

Republic of Korea

Egressor

Daegu District Court Decision 91Da31187 delivered on December 4, 1992

1. The judgment of the court below is revoked.

2. The part regarding the claim for land transfer among the instant lawsuits shall be dismissed.

3. The defendant shall remove the plaintiff the part of the annexed drawing (A) on the ground of 261m2 m2, 260m2, 260m2, 3m2, 3m2, 56.0m2, 56.0m2, 56m2, 56.0m2, 2m2, living rooms, kitchen rooms, bathing rooms, floors, stairs 54.0m2, 6.0m2, 6.0m2, 7m2, 3m2, 2m2, and 8.0m2, 8m2, respectively, from the cement block structure to the plaintiff.

4. The costs of lawsuit shall be four minutes for both the first and second instances, and one of them shall be borne by the plaintiff and the other by the defendant.

5. Paragraph 3 can be provisionally executed.

The judgment of the court below shall be revoked.

The primary claim: The judgment identical with the order of Paragraph 3, and the defendant shall deliver the land in the order to the plaintiff.

Preliminary Claim: The Defendant ordered the Plaintiff to order the parts of the buildings described in paragraph 3(a), (b), (c), (d), and (e) of the Disposition, and to deliver the land described therein.

1. Details of the Plaintiff’s claim

As the Plaintiff’s primary claim, the instant land stipulated in Paragraph 3 of the Disposition is owned by the Plaintiff, and the Defendant without any title owned the buildings stipulated in Paragraph 3 of the Disposition on the ground, and occupied the said land, asserting that the said land was occupied by possessing the buildings indicated in Paragraph 3 of the Disposition on the ground, the Defendant sought removal of the said buildings and delivery of the said land, and sought a clarification of the said buildings

2. Determination as to the claim for land transfer

According to each one of Gap evidence Nos. 5 and 6, the plaintiff filed a lawsuit against the defendant on 1989 against the defendant, and the defendant possessed the above land without any title on the land of this case owned by the plaintiff for the reason that he possessed the above land (the plaintiff, the plaintiff 89's 89's 28720 m20 m20 m20 m2, the plaintiff), and the plaintiff filed a lawsuit seeking the delivery of the above land and the removal of the above ground building (the plaintiff, the plaintiff 89's 89's m28720 m20 m2, the plaintiff) on 12.12. of the same year, and the judgment becomes final and conclusive on 2.6. of

According to the above facts, the claim for the transfer of land and the claim for the transfer of land of this case are identical to the parties in a lawsuit, and therefore res judicata of the judgment in a prior suit extends to the claim for the transfer of land of this case. Thus, this part of the plaintiff's claim (this part of the claim is identical to the main claim) is unlawful because there is no benefit in the protection of rights (However, res judicata of the decision in a prior suit does not affect the claim for removal of building of this case because the building does not coincide

3. Determination as to the request for removal of buildings

A. The facts that the land of this case was owned by the plaintiff and the facts that the defendant owned the buildings stipulated in Paragraph (3) of the disposition on the ground do not conflict between the parties. Thus, the defendant is obligated to remove the above buildings unless there are special circumstances.

B. The Defendant asserts that from around 1970, he leased and used the instant land for the purpose of owning a building. Since the lease term expired and there are buildings, he first exercises the right to claim renewal of the lease, and if he refuses it, he exercises the right to claim purchase of the said building.

However, the res judicata of the part on the delivery of the land in the previous suit as seen earlier is effective as to the existence of the Plaintiff’s claim against the Defendant at the time of December 12, 1989, which was the date of the closing of argument in the previous suit. Since the right to lease of the Defendant’s assertion existed before the date of closing of argument and is merely a defense that contests the above right to claim the above right to claim the transfer of land, the Defendant’s assertion of the above right to lease is not allowed

The defendant asserts that since the land of the judgment in the previous suit and the land of this case are different in their location and in number, res judicata of the judgment in the previous suit does not extend to this case. However, as seen earlier, the land of this case is identical to the land of the judgment in the previous suit, and therefore

In addition, the defendant argues that the judgment in a prior suit is not res judicata effect in that the plaintiff would immediately withdraw the lawsuit to the defendant and would not execute the lawsuit even if the plaintiff won the lawsuit, and that the judgment is finalized as a result of the defendant's failure to file a lawsuit, and that the judgment does not have res judicata effect. However, there is no evidence to acknowledge the above defendant's assertion, and even if there is such reason as family affairs, the judgment in the prior suit cannot be denied

4. Conclusion

Therefore, the part of the plaintiff's lawsuit of this case seeking the delivery of land is dismissed as unlawful and the removal part of the main claim is cited for the reasons, and the judgment of the court below is unfair as it is so decided as per Disposition.

Justices Kim Jin-jin (Presiding Justice)