Whether res judicata effect on the final and conclusive judgment of a lawsuit demanding cancellation of ownership transfer registration affects the existence of ownership

The res judicata effect of the final and conclusive judgment dismissed in the lawsuit of the execution of the procedure for cancellation registration of ownership transfer only affects the existence of the right to claim for cancellation registration of ownership transfer.

Article 202 of the Civil Procedure Act

Supreme Court Decision 71Da1727 delivered on September 28, 1971 (Supreme Court Decision 98Da1729 delivered on September 29, 197, Supreme Court Decision 19NoDa325 delivered on September 25, 197, Supreme Court Decision 202Da902 delivered on

Korea

Defendant

Busan District Court (75 Gohap1036)

The original judgment shall be revoked.

The defendant shall carry out each of the procedures for the transfer registration of ownership shares and ownership on the ground of the restoration of the true name with respect to the portion of 200 shares and the portion of 381 shares and the portion of 102 shares of the 381-2 shares of Busan-dong Busan-dong 277, Busan-dong 271 and the 104-1 of the 294.

All the costs of lawsuit shall be borne by the defendant.

The original judgment shall be revoked.

In the first instance, it is a selective claim on real estate and shares stated in the order, and the purport of the claim as stated in the order and the defendant will implement the registration procedure for transfer of ownership based on the completion of administrative affairs on July 3, 1975 to the plaintiff.

The judgment that the costs of the lawsuit shall be borne by the defendant is sought,

Preliminaryly, the defendant will implement the registration procedure for ownership transfer on November 1, 1960 to the plaintiff.

Each judgment that the costs of lawsuit shall be borne by the defendant is sought.

According to the facts that each real estate stated in the order was owned by the original state of the plaintiff and the fact that each ownership transfer registration has been completed under the name of the defendant as of March 8, 1974, there is no dispute between the parties, and according to the evidence No. 5 and No. 6, the plaintiff, against the defendant, a lawsuit claiming ownership confirmation against the defendant to the effect that the share in this real estate and miscellaneous land were originally owned by the non-party No. 1 without taking over the transfer procedure as provided in Article 10 of the Enforcement Decree of the Farmland Reform Act, and the above farmland distribution is naturally null and void, and the ownership of the above real estate remains in the plaintiff, and the judgment in favor of the plaintiff is rendered as of April 6 of the same year.

However, the above judgment is alleged to be contrary to res judicata effect of the final judgment. Accordingly, according to each description of No. 1-3 of the evidence No. 1-3, the plaintiff filed a lawsuit against the non-party 1 and the defendant for the execution of the procedure to cancel the registration of cancellation of ownership transfer on the ground that the distribution of farmland against the real estate in this case is void automatically, but the dismissal judgment was rendered on October 26, 1965 and again appealed to the party members who appealed, but the above judgment was deemed to have been withdrawn as the plaintiff's failure to appear at the date of pleading, and it is recognized that the above judgment became final and conclusive as the plaintiff's failure. However, the res judicata effect of the final judgment dismissed in the procedure to cancel the registration of cancellation of ownership transfer does not extend only to the existence of the right to claim the cancellation of ownership transfer registration. Thus, the above rejection of the final judgment of cancellation does not interfere with the right to claim the confirmation of ownership, which is a separate subject matter of lawsuit, and there is no ground for defense as above.

In addition, the plaintiff filed a lawsuit to nullify the disposition of farmland distribution against the non-party 2 and 3, the original receiver of this real estate, and the judgment dismissing the claim becomes final and conclusive. Since the defendant constitutes a successor under Article 204 of the Civil Procedure Act, the plaintiff's assertion that the defendant cannot make any claim against the defendant in conflict with the above final and conclusive judgment, even though it is recognized that there exists a final and conclusive judgment as alleged, since there is no evidence to acknowledge that the defendant is a successor after the conclusion of the final and conclusive judgment,

Therefore, the defendant, who only has the title of registration that is not consistent with the substantive legal relationship with respect to this real estate, has the obligation to implement the procedure for ownership transfer registration against the plaintiff, who is the actual owner, for the restoration of the real title of registration. Therefore, the plaintiff's claim for this performance is justified and accepted, and the costs of the lawsuit are assessed against the losing party.

Judges Kim Young-young (Presiding Judge) Park Jong-ho