A. In a case where the subject matter of the previous suit is a claim for ownership transfer registration, whether the person who received the registration of ownership transfer from the defendant in the previous suit after the closing of argument in the previous suit is a third party after the closing of argument in the previous suit (negative)

B. Where a retrial case is dismissed on the grounds after the closing of argument in the judgment subject to retrial, the standard time of res judicata (=when the closing of argument in the judgment)

C. Whether it is necessary to preserve the creditor's subrogation right in a case where the preservation of the creditor's subrogation lawsuit is not required (=Dismissal of a lawsuit), and where the judgment of losing the creditor's subrogation right becomes conclusive (negative)

D. In a case where a creditor's lawsuit claiming ownership transfer registration against the debtor or a lawsuit claiming compensation becomes final and conclusive against the debtor, whether a claim seeking cancellation of a fraudulent act seeking cancellation of a debtor's transfer registration against a third party in order to exercise each of the above claims (negative)

A. If the subject matter of the previous suit is a claim for ownership transfer registration, the person who received the registration of ownership transfer from the defendant of the previous suit after the closing of argument in the previous suit shall not be deemed to be a third party after the closing of argument in the previous suit.

B. While recognizing that there exist grounds for retrial in a retrial case, if a retrial is dismissed for reasons after the closing of argument in the judgment subject to retrial, the standard time of res judicata should not be deemed the time of closing of argument in the judgment subject to retrial, but the time

C. In order to preserve the right to claim the registration of transfer of ownership in the name of a third party on behalf of the debtor in subrogation of the debtor, the right to claim the registration of transfer of ownership in the name of the third party should be acknowledged, and if such preservation is not required, it shall be dismissed ex officio as the lawsuit is unlawful. If the creditor filed a lawsuit against the debtor in the performance of the procedure for registration of transfer of ownership but the judgment of the losing decision was rendered against the debtor, the creditor can no longer file the claim for registration of transfer of ownership due to res judicata effect of the above judgment. In addition, the creditor who won the lawsuit by the creditor subrogation cannot seek again the execution of the procedure for registration of transfer of ownership against the debtor, and therefore the creditor cannot seek again the execution of the procedure for registration of transfer

D. In order to exercise the creditor's right of revocation, it should be premised on the fact that the debtor can exercise his/her claim against the debtor. However, in the event that a creditor's lawsuit claiming the transfer of ownership or a lawsuit claiming the transfer of ownership against the debtor becomes final and conclusive and cannot be exercised, the claim seeking the cancellation of the debtor's claim for the transfer of ownership or the claim for damages against the third

A. Article 204(b) of the Civil Procedure Act: Articles 430 and 505(c) of the same Act; Article 404 of the Civil Act; Article 226 of the Civil Procedure Act / [Institution of Lawsuit]

A. Supreme Court Decision 80Da2217 decided Nov. 25, 1980 (Gong1981, 13405) decided Jun. 27, 1989 (Gong1989, 1144), Supreme Court Decision 85Da534 decided Feb. 11, 1986 (Gong1986, 443), Supreme Court Decision 91Da2487, 24854 decided Jul. 28, 1992 (Gong192, 3238)

Attorney Hwang-gil, Counsel for the plaintiff-appellant-appellee

Kim Young-chul et al., Counsel for the defendant-appellant Kim Yong-han, Counsel for the defendant-appellant

Gwangju District Court Decision 90Na2600 delivered on May 13, 1992

The part of the judgment of the court of first instance concerning the primary claim shall be reversed and revoked.

The lawsuit against the plaintiff's primary claim shall be dismissed.

The plaintiff's conjunctive claim is dismissed.

All costs of the lawsuit concerning the primary claim and the conjunctive claim shall be borne by the plaintiff.

The plaintiff's grounds of appeal (the supplemental appellate brief before leap is considered to the extent of supplement in case of the plaintiff's supplemental appellate brief).

1. The facts duly established by the judgment below of this case are as follows.

(A) Each of the instant real estates was originally owned by Nonparty Kim Young-hee (Death January 9, 1988), and the ownership transfer registration was made on April 30, 1986 in the name of his wife, children, and the Defendants, who were private students, for each transaction.

(B) On July 1, 1964, the plaintiff filed a lawsuit against the above Kim Young-hee seeking implementation of the procedure for ownership transfer registration of each of the real estate of this case designated by the plaintiff among the above reclaimed land, and the Supreme Court reversed the judgment of the second instance on March 12, 1985 on the ground that there was no evidence to acknowledge that the plaintiff had the above right to occupation and use public waters or transferred the above right to the deceased on March 12, 1985 to the public waters of 45,000 square meters, which the plaintiff occupied and used for reclamation of public waters. In return, after completion of reclamation work, the plaintiff transferred the right to occupy and use public waters of 45,000 square meters to the plaintiff, and entered into an exchange contract with the plaintiff to transfer 13,500 square meters of the reclaimed land to the part designated by the plaintiff.

(C) After that, the plaintiff filed a complaint against the non-party 1 and non-party 2 of the second instance trial prior to the remanding of the above lawsuit on the grounds that he was guilty of perjury, and filed a lawsuit for a retrial against the above 85Na158 case with the above Gwangju High Court. However, on April 22, 1987, the above court acknowledged that there was a ground for retrial under Article 422 (1) 7 of the Civil Procedure Act in the judgment subject to a retrial on April 22, 1987, but since the ownership transfer registration was made in the name of the defendants of this case from the above defendant Kim Young-hee after the judgment subject to a retrial, the above Kim Young-hee's obligation to transfer ownership was impossible, barring any special circumstance, even if the plaintiff's assertion was justifiable, and thus, the above judgment dismissed the plaintiff's petition for retrial, which became final and conclusive on May 21 of the same year.

2. After finding the facts as above, the court below affirmed the judgment of the first instance court that dismissed the plaintiff's claim of this case on the ground that the above Kim Young-hee's claim for cancellation of ownership transfer registration in the name of the defendants on the ground that the above Kim Young-hee and the defendants' claim for cancellation of ownership transfer registration in lieu of the above Kim Young-hee on the ground that the above contract of this case was a false conspiracy mark, and that the above contract of this case constitutes the plaintiff's claim for ownership transfer registration or the plaintiff's claim for cancellation of ownership transfer registration in the name of the defendants was made. However, although the above judgment for cancellation was affirmed, the judgment dismissed the plaintiff's claim for ownership transfer registration of the above Kim Young-hee, which was the legal effect of the above final judgment, and the judgment that there was no obligation for ownership transfer registration in the above Kim Young-hee, which is the legal effect of res judicata effect of the above final judgment, became a preliminary issue of the claim of this case, and thus, the res judicata effect is affected within its limit.

3. However, even if the existence of the above Kim Young-hee's obligation to transfer ownership to the plaintiff, who was the object of the judgment in the above previous suit, becomes a preliminary question in the judgment in this case, the res judicata effect of the final and conclusive judgment does not extend only between the same parties, and it does not extend to the case where the parties are different. Thus, the res judicata effect of the judgment in the above previous suit does not naturally affect

The court below held that since the Defendants constitute a successor after the closing of argument in the previous suit, the res judicata effect of the judgment in the previous suit is also effective in this case. However, even if the Defendants received the ownership transfer registration from the Defendant in the previous suit after the closing of argument in the previous suit, even if they received the ownership transfer registration from the Defendant in the previous suit, it cannot be deemed that the Defendants constitute a third party after the closing of argument in the previous suit (see, e.g., Supreme Court Decisions 69Da80, Oct. 23, 1969; 80Da2217, Nov. 25, 1980).

In addition, while the above new judgment is recognized as grounds for retrial in the judgment subject to retrial, the court dismissed the claim for retrial on April 30, 1986 from the defendant Kim Young-hee to the defendants of this case on the ground that the ownership transfer registration of each of the instant real estate was completed and the obligation to transfer ownership to the plaintiff of the above Kim Young-hee was impossible. In such a case, even if the court recognizes that there exists grounds for retrial in the retrial case, if the court dismisses the request for retrial on the grounds after the closing of argument in the judgment subject to retrial, the standard time of res judicata should be not the time of closing of argument in the judgment subject to retrial but the time of closing of argument in the judgment

4. However, in this case, the plaintiff's primary claim in subrogation of the above Kim Young-hee for the purpose of preserving the right to claim the transfer registration of ownership against the above Kim Young-hee, and the creditor's exercise of the right to the third party in subrogation of the debtor in accordance with the principle of subrogation right of the creditor should be required to preserve the debtor's claim against the third party in order to preserve the debtor's claim against the debtor. Therefore, in order to accept the plaintiff's primary claim in this case, the plaintiff's right to claim the transfer registration of ownership against the above Kim Young-hee should be acknowledged. If such preservation is not necessary, the part concerning the primary claim in this case is illegal, and the court should dismiss it ex officio

However, the plaintiff asserted that the above Kim Young-hee has the right to claim for the transfer registration of ownership and filed a lawsuit against the above Kim Young-hee for the performance of the transfer registration procedure, but the final and conclusive judgment against the plaintiff was rejected and the final decision became final and conclusive. As such, the plaintiff cannot claim for the transfer registration of ownership against the above Kim Young-hee or his heir any longer due to the res judicata effect of the above judgment. The plaintiff cannot claim for the transfer registration of ownership in his name because the plaintiff won the lawsuit against the defendants in this case and the registration of transfer of ownership in his name was cancelled, the plaintiff cannot claim again against the above Kim Young-hee's heir (see Supreme Court Decision 91Da24847, 24854 delivered on October 27, 1992). Thus, the plaintiff cannot be viewed as unlawful and dismissed the plaintiff's claim as it did not reach the judgment of the court below which dismissed the plaintiff's claim ex officio (see Supreme Court Decision 85Da534 delivered on February 11, 1986).

5. In addition, under the premise that the plaintiff has the right to revoke the above Kim Young-hee's right to revoke the above contract by exercising the right to revoke the sale and purchase and the registration of transfer in the name of the defendants on the ground that the sale and purchase contract between the above Kim Young-hee and the defendants was a fraudulent act detrimental to the plaintiff. Even if the plaintiff can exercise the right to revoke the plaintiff's right to revoke on the ground that such right to claim for transfer of ownership or the right to claim for damages arising from the impossibility of performance, it should be the premise that the plaintiff can exercise the above right to revoke the plaintiff's right to revoke.

However, as seen earlier, the plaintiff was unable to exercise the right to claim ownership transfer registration against the above Kim Young-hee, and according to the records, the plaintiff filed a claim for damages against the above Kim Young-hee's heir by action on the ground that the above Kim Young-hee's obligation to claim ownership transfer registration was impossible after the decision of dismissal of the retrial, but (the above Kim Young-hee's death seems to have occurred in the lawsuit, but the claim is dismissed and the judgment of dismissal becomes final and conclusive on the ground that the above claim is contrary to the res judicata effect of the final and conclusive judgment dismissing the claim for ownership transfer registration, and it is also impossible for the plaintiff to exercise the above right to claim damages and thus, the plaintiff's preliminary claim seeking the cancellation of the fraudulent act cannot be accepted.

Although the court below rejected the plaintiff's conjunctive claim, the plaintiff's argument that the plaintiff's conjunctive claim is just and justified is eventually without merit.

6. Accordingly, the part of the judgment of the court below as to the main claim is reversed, and it is obvious that the court of first instance dismissed the plaintiff's claim on this part as well as the judgment of the court of first instance, which dismissed the plaintiff's claim on this part. Thus, the judgment of the court of first instance is revoked and the lawsuit as to the plaintiff's main claim is dismissed. The appeal as to the plaintiff's conjunctive claim is without merit, and it is so decided as per Disposition by the assent of all participating Justices who reviewed the appeal.