The res judicata effect of a final and conclusive judgment dismissed in the case of claim for the cancellation registration procedure of ownership transfer registration shall only affect the existence of the right of claim for cancellation registration of ownership transfer registration, and it shall not affect the existence of ownership (the lawsuit for confirmation of ownership) which has not been

The res judicata effect of a final and conclusive judgment dismissed in the case of claim for the cancellation registration of ownership transfer shall only affect the existence of the right to claim the cancellation registration of ownership transfer, and it shall not affect the existence of ownership (the lawsuit for confirmation of ownership) which is not a subject

Articles 202 and 228 of the Civil Procedure Act

Korea

Defendant 1 and one other

Busan District Court Decision 70Na647 delivered on June 8, 1971

Of the original judgment, the part against the Plaintiff’s conjunctive claim is reversed.

The case portion is remanded to the Daegu High Court.

Judgment on the grounds of appeal by the plaintiff performer

The judgment of the court below rejected the plaintiff's conjunctive claim, and the res judicata effect of the previous final and conclusive judgment does not confirm only the procedure for the registration of ownership transfer and the existence of the right to registration of cancellation on the land in question. However, the plaintiff's confirmation of ownership on the land in question is identical to the cause claimed by the plaintiff in the above final and conclusive judgment, and even if the plaintiff has ownership on the land in question, the cancellation of registration passed through the defendant et al. cannot be demanded again as the relation of res judicata effect. Thus, the plaintiff's preliminary claim for confirmation of ownership on the same subject matter in the same lawsuit has no interest in confirmation. Thus, the plaintiff's claim for confirmation of ownership is dismissed without reason.

However, in a case where one's own right is denied by others or is threatened with or interfered with by opposing arguments, there is a benefit to seek confirmation of his rights or legal relations against others. The res judicata effect of a final and conclusive judgment to which the plaintiff's claim is dismissed shall only extend to the existence of the right to claim cancellation registration of ownership transfer, and it shall not extend to the existence or absence of ownership. Thus, in this case, even if the parties to the lawsuit for confirmation of ownership of the plaintiff's conjunctive claimant's land and its underlying cause are identical to those of the parties in the judgment which became final and conclusive, the lawsuit in this case is different. Since clarifying the ownership of the plaintiff's main land is a claim for the execution of the procedure for cancellation registration of ownership transfer registration, the plaintiff's right to the main land shall be deemed as benefit to the plaintiff even with the exception of such claim, and as long as the defendant claims the plaintiff's ownership of the land in this case without immediate confirmation of ownership, the judgment below shall be justified in the misapprehension of legal principles as to the plaintiff's interest or res judicata effect of the judgment.

Therefore, the part against the Plaintiff regarding the claim for confirmation of ownership among the original judgment is reversed, and the case is remanded to the Daegu High Court. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Supreme Court Judges Yang Byung-ho (Presiding Judge) (Presiding Judge) and Kim Young-young