[1] Whether denying the Plaintiff’s acquisition of land by asserting such assertion in a lawsuit seeking removal of a building on the ground that is the Defendant’s ownership after the principal registration was not asserted as a provisional registration in a principal registration suit based on a provisional registration on land constitutes a means of real-time attack and defense (negative)

[2] Whether it is against the res judicata effect of a final and conclusive judgment to deny the acquisition of the Plaintiff’s land ownership by asserting that the pertinent provisional registration is a provisional registration in a lawsuit seeking removal of a building on the ground of a provisional registration on the ground of a provisional registration on the land (negative)

[1] In a lawsuit seeking removal of a building on land owned by the defendant after the plaintiff completed the principal registration based on the above judgment, the fact that the plaintiff did not assert that the provisional registration was a provisional registration for the purpose of security in the previous suit seeking the principal registration on land based on the provisional registration does not constitute a means of real attack and defense.

[2] Even if a judgment ordering a principal registration based on a provisional registration becomes final and conclusive in a prior suit, res judicata of the final and conclusive judgment affects only the existence of the right to claim the principal registration, which is a subject matter of lawsuit, and its existence does not affect the existence of ownership itself, and thus, it cannot be said that the Defendant’s denying the Plaintiff’s acquisition of ownership by asserting that the provisional registration is a provisional registration for security

[1] Article 138 of the Civil Procedure Act / [2] Article 202 (1) of the Civil Procedure Act

[2] Supreme Court Decision 95Da37988 delivered on December 20, 1996 (Gong1997Sang, 344), Supreme Court Decision 96Da43799 delivered on May 16, 1997 (Gong1997Ha, 1826), Supreme Court Decision 97Da9529 delivered on June 27, 1997 (Gong1997Ha, 2348)

Plaintiff (Attorney Yoon Sung-won, Counsel for the plaintiff-appellant)

Defendant

Seoul High Court Decision 95Na16419 delivered on July 12, 1996

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

We examine the grounds of appeal.

1. On the violation of the rules of evidence

In light of the records, the court below is just in holding that the provisional registration in the name of the plaintiff on May 6, 1985 on the site of this case was made for the purpose of a security that the plaintiff would make the principal registration on the basis of the provisional registration by declaring that the plaintiff would at any time delay the repayment of the loan to the plaintiff, and that the defendant would make the principal registration on the basis of the provisional registration by making a declaration of intention to complete the sale and purchase, and that the defendant filed a lawsuit seeking the principal registration on the provisional registration on the ground that the plaintiff had expressed his intention to complete the purchase and sale contract with the defendant by delaying the loan loan obligation, which is the obligation to be secured by provisional registration security, and that the principal registration has been made by a final judgment on the ground that the plaintiff had declared his intention to complete the sale and purchase contract against the defendant, and that the principal registration on the provisional registration

The grounds of appeal on this point cannot be accepted.

2. As to the remaining grounds of appeal

As alleged in the ground of appeal by the plaintiff, even if the plaintiff finally acquired the ownership of the site of this case by the expiration of ten years from September 30, 1985 due to the repayment period of the defendant's loan obligation, and ten years thereafter, pursuant to the proviso of Article 11 of the Provisional Registration Security Act, at the time of the plaintiff's claim for the extinguishment of legal superficies as to the building owned by the defendant on March 26, 1994, as decided by the court below, since the plaintiff merely registered the site of this case, and did not acquire the ownership of the site of this case as it did not go through the liquidation procedure prescribed in the same Act, there was no room to establish legal superficies as to the building owned by the defendant, and therefore, the plaintiff's claim for the extinction of legal superficies of this case was not effective, and therefore, the plaintiff's claim for the extinguishment of legal superficies of this case is rejected, therefore, even if there was an error of law as alleged by the plaintiff in the judgment below as to this part, it does not affect the conclusion of the judgment.

In addition, in the case of Suwon District Court Sung-nam Branch 86Ga253, Suwon District Court 86Gadan253, if the defendant did not assert that provisional registration was a provisional registration for security purpose, it cannot be deemed that the plaintiff's assertion was made in the lawsuit of this case, which is a separate lawsuit, and thus, it cannot be deemed unlawful for the court below to dismiss it. Even if the judgment ordering the principal registration based on provisional registration in the previous lawsuit became final and conclusive, the res judicata effect of the final and conclusive judgment only affects the existence of the principal registration right, which is a subject matter of lawsuit, and it does not extend to the existence of ownership itself, and therefore, it cannot be said that the defendant denying the plaintiff's acquisition of ownership by asserting

The grounds of appeal on this point also cannot be accepted.

3. Therefore, the appeal shall be dismissed, and all costs of appeal shall be assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Cho Chang-hun (Presiding Justice)