Plaintiff (Law Firm Gyeong, Attorney Shin Jong-sung, Counsel for the plaintiff-appellant)

Defendant 1 and six others (Law Firm Daegu, Attorneys Kim Jong-ho, Counsel for the defendant-appellant)

November 10, 2009

Daegu District Court Decision 2007Kadan1612 Decided January 7, 2009

1. According to the Plaintiff’s amendment of the purport of the claim in the trial, the judgment of the first instance is modified as follows.

A. Defendant 2 (Defendant 1 of the Supreme Court’s judgment), Defendant 3 (Defendant 2 of the Supreme Court’s judgment), Defendant 4 (Defendant 3 of the Supreme Court’s judgment), Defendant 5 (Defendant 4 of the Supreme Court’s judgment), Defendant 6 (Defendant 5 of the Supreme Court’s judgment), and Defendant 7 (Defendant 6 of the Supreme Court’s judgment) are the Plaintiff.

(1) The ownership transfer registration completed on January 24, 2007 in the Daegu District Court No. 5124 with respect to each share listed in the separate sheet No. 2, among each real property listed in the separate sheet No. 1 through No. 4 of the separate sheet No. 1, and

(2) The transfer of ownership, which is completed on January 24, 2007 by receipt No. 5123, with respect to each share listed in the separate sheet No. 2, among the real property listed in the separate sheet No. 6 through 9, is registered in the Daegu District Court.

Each cancellation registration procedure shall be implemented.

B. The Plaintiff’s claim against Defendant 1 (Co-Defendant 1 of the lower court’s judgment) and all remaining claims against Defendants 2, 3, 4, 5, 6, and 7 are dismissed.

2. Of the total litigation cost, the part arising between the Plaintiff and Defendant 1 shall be borne by the Plaintiff, and the part arising between the Plaintiff and Defendant 2, 3, 4, 5, 6, and 7 shall be borne by the Plaintiff, and the remainder by the Plaintiff shall be borne by the Defendant 2, 3, 4, 5, 6, and 7.

The judgment of the first instance shall be revoked.

In the first place, Defendant 1 will implement the registration procedure for ownership transfer on August 7, 2002 with respect to the portion of 13/17 out of each real estate listed in the attached Table 1 attached hereto to the Plaintiff.

Preliminary, the order No. 1-A and the defendant 2, 3, 4, 5, 6, and 7 will implement the procedure for cancellation registration of transfer of ownership completed in accordance with the receipt No. 5124, Jan. 24, 2007, with respect to each share stated in the separate sheet No. 2, among the real property listed in the separate sheet No. 5 of the attached sheet No. 1 to the Plaintiff. 5.

(The plaintiff reduced the purport of the claim against the defendant 1 at the trial, while the defendant 1 was the primary defendant and the remainder of the defendants as the preliminary defendant.)

1. Determination as to the claim against the main defendant 1

The court's explanation on this part is as follows: "Defendant 1 co-defendant 1 of the first instance court" among the reasons for the judgment of the first instance court is as "Co-defendant 1 of the first instance court"; "13/15 shares" in the part of the first instance part as "13/17 shares"; "Gincheon Support" as "unregistered establishment"; and "the same support" as "the same registry office" in the part of the reasons for the judgment of the first instance, and therefore, it is identical to that of paragraphs 1 and 2 (a) in accordance with the main sentence of Article 420 of the Civil Procedure Act.

2. Determination on the claim against the conjunctive defendant 2, etc.

A. The plaintiff's assertion

(1) Before the Defendants received the aforementioned decision of recommending reconciliation (hereinafter “the recommendation of reconciliation of this case”), the Plaintiff already completed the registration of this case upon receiving the provisional disposition prohibiting disposal of shares of Defendant 1 among each real estate of this case. Since the Defendants conspired for the purpose of evading obligations and received the decision of recommending reconciliation of this case, the Plaintiff does not have res judicata effect on the recommendation of reconciliation of this case.

(2) In addition, the co-defendant 1 of the first instance court received the registration of transfer of ownership with respect to Defendant 1’s share from Defendant 1, among the real estate listed in [Attachment 6 through 9] attached Table 1, before the decision to recommend the settlement of this case becomes final and conclusive, and thus, it does not constitute a successor whose res judicata effect on the decision

(3) Therefore, the granting of the succeeding execution clause to the plaintiff and co-defendant 1 of the first instance trial is illegal and unjust, and thus the registration of each transfer of ownership in the name of defendant 2, etc., which was made accordingly, is null and void.

(4) Therefore, the Plaintiff is the genuine owner who received the registration of ownership transfer from Defendant 1 with respect to the share of 13/17 out of each real estate listed in the separate sheet No. 1 through (5). As to the share of 13/17 out of each real estate listed in Articles 6 through 9 of the same list, the Plaintiff seeks cancellation of the registration of ownership transfer in the name of Defendant 2, etc., respectively, to Defendant 2, etc.

B. The plaintiff's right to claim the transfer registration of ownership against co-defendant 1 in the first instance trial

The co-defendant 1 of the first instance court's co-defendant 1 received the registration of ownership transfer with respect to 15/17 shares among the real estate listed in the attached Tables 6 through 9 of the attached Table 1 as a security for the obligation against Nonparty 1, and according to the purport of the whole entries and arguments in Eul evidence 1 and 2-1, it is recognized that the co-defendant 1 of the first instance court agreed to complete the registration of ownership transfer with respect to each of the above shares again to the plaintiff upon the repayment of the above shares by Nonparty 1. Thus, in the creditor subrogation lawsuit of this case filed by the plaintiff against Defendant 2, etc. on behalf of Co-defendant 1 of the first instance court, the existence of the preserved claim and the necessity for its preservation is recognized.

(c) Decision on whether to grant an succeeded execution clause to co-defendant 1 of the first instance trial;

First of all, we examine the standard point of time of res judicata of the final and conclusive decision of recommending reconciliation. The final and conclusive decision of recommending reconciliation has the same effect as a judicial compromise (Article 231 of the Civil Procedure Act). Since a judicial compromise has the same effect as a final and conclusive judgment, it takes effect as res judicata effect (Articles 220 and 461 of the Civil Procedure Act), it is reasonable to view the time when the decision becomes final and conclusive as a standard of res judicata effect (where the date is based on the end of the date, a reasonable period between the date and the establishment of the contents of reconciliation may have elapsed if it is based on the date of the decision, and if it is based on the date of the decision, it is inappropriate to regard the time when the parties cannot know as the standard of time when the decision is made as the date of notification

However, the facts that the decision of recommending reconciliation in this case was confirmed on November 24, 2005 are without dispute between the parties, and the fact that Defendant 1, co-defendant 1, on May 26, 2005, before the decision of recommending reconciliation in this case became final and conclusive, received the registration of transfer of ownership with respect to Defendant 1's share from Defendant 1 among the real estate listed in attached Tables 6 to 6 to 9, 2005, is identical as seen earlier. Accordingly, the grant of the execution clause to co-defendant 1 in the first instance court is illegal.

D. Whether to grant the succeeding execution clause to the plaintiff

(1) In the case of the real estate listed in Attachment 1 List 5:

However, even if the provisional disposition registration for the prohibition of disposal of real estate in dispute was completed at the request of a person who has no right in substance, the provisional disposition owner cannot assert the effect of the provisional disposition against the debtor or a third party. Thus, the person who completed the registration of ownership transfer after the provisional disposition registration can assert that the ownership transfer has been effective in relation to the right holder of the provisional disposition (see Supreme Court Decision 98Da38760 delivered on October 8, 199). Although the above real estate is not included in each of the above real estate in this case, the fact that the plaintiff received the decision of provisional disposition because the above provisional disposition registration was completed before the settlement recommendation of this case. Thus, even if the above provisional disposition registration was completed before the settlement recommendation of this case, the plaintiff cannot oppose the defendant 2, etc., and therefore, the execution clause for the succession to the plaintiff who received the registration of ownership transfer from defendant 1 after the settlement recommendation of this case became final and conclusive, the plaintiff's assertion in this part is without merit.

(2) In the case of each real estate listed in [Attachment I] section 1 to 4:

The Plaintiff filed a lawsuit against Defendant 1 seeking partial cancellation of the ownership transfer registration based on Defendant 1’s above shares, claiming that the right to claim ownership transfer registration under the instant letter is a preserved right, and completed the provisional disposition for prohibition of disposal of Defendant 1’s shares among each of the above real estate, and completed the registration of entry. Defendant 2, etc., asserting that “Defendant 1 has completed the registration of ownership transfer based on his voluntary donation due to the renunciation of inheritance,” and received a decision to recommend settlement of this case that he would receive the ownership transfer registration based on the restoration of authentic name from Defendant 1.”

However, comprehensively taking account of the following facts: Gap evidence 6-3, Gap evidence 6-3, Eul evidence 12-3, and some testimony by non-party 1 witness of the court of first instance: ① deliver a certificate of personal seal impression, etc. to defendant 1 at the time of the lapse of three months after non-party 2's death (it does not appear that the defendant 2, etc. issued a certificate of personal seal impression, etc. to defendant 1 with the intention of non-party 1 by strictly distinguishing between the non-party 2, etc. and the renunciation of inheritance). ② When the defendant 2, etc. had the deceased non-party 2 urged the repayment of the debts of the pre-existing loans from the Mallman Industrial Cooperative around 203, on the ground that the pre-existing provisional disposition was issued by the deceased non-party 1 to the effect of the pre-existing provisional disposition, and thus, the plaintiff's right to file a lawsuit seeking cancellation of the above debts from non-party 1 and the plaintiff's right to file an objection against the previous provisional disposition.

Therefore, the granting of the inheritance execution clause against the plaintiff is illegal.

E. The substantive legal effect of an execution act following the illegal grant of an execution clause

Even if an execution creditor has been granted an execution clause to a person who is not qualified for succession and filed an application for ownership transfer registration, and the registration has been made accordingly, it is reasonable to deem that the transfer of ownership does not take effect under substantive laws such as transfer of ownership, since the execution creditor was made by making a person who is not qualified for the execution debtor as the execution debtor, and the same applies to the case where the above successor had an opportunity to receive the right of remedy through an objection or a lawsuit of objection against the grant of execution clause before the execution is completed (On the other hand, according to the purport of each of the evidence No. 43-1 through No. 44 and all of the pleadings, the plaintiff and the co-defendant 1 of the first instance court filed a lawsuit of objection against the grant of execution clause after receiving a certified copy of the execution clause, and filed a lawsuit of objection against the grant of execution clause before the execution is completed (Seoul District Court Decision 2007Gaga640).

Therefore, the registration of transfer of ownership in the name of Defendant 2, etc. with respect to each real estate listed in the separate sheet No. 1 through (4) and 6 through (9) shall be deemed to be the registration invalidation of cause. As to each share in the separate sheet No. 1 through (4) of the real estate listed in the separate sheet No. 1 and each share in the separate sheet No. 2 among the real estate listed in the separate sheet No. 1 through No. 4, Defendant 2, etc. are obligated to implement the procedure for cancellation of the registration of transfer of ownership in each order with respect to each of the above share in the real estate listed in the separate sheet No. 6 through (9) to the Plaintiff, and the Plaintiff, as

3. Conclusion

Therefore, the plaintiff's claim against the primary defendant 1 is dismissed as it is without merit, and the claim against the primary defendant 2, etc. is justified within the above scope of recognition, and the remainder is dismissed as it is without merit. It is so decided as per Disposition by the court of first instance according to the plaintiff's amendment of the claim in the trial.

[Attachment]

Judges Kim Jong-sung (Presiding Judge)