[1] In violation of Article 7 of the former State Property Act, the validity of an employee’s act of acquiring and reselling State property under another’s name (negative)

[2] Whether the res judicata effect of the final and conclusive judgment ordering the implementation of the procedure for ownership transfer registration also applies to the claim for ownership transfer registration for the confirmation of ownership in the subsequent suit or for ownership transfer registration for the restoration of authentic name

[3] Where a third party acquired real estate by an act of an employee in violation of Article 7 of the former State Property Act, the relationship between a third party's claim for ownership transfer registration for the restoration of the real name of the state against the third party and a claim for damages against the third party's illegal act

[1] In full view of the legislative purport of Article 7 of the former State Property Act (amended by Act No. 2950 of Dec. 31, 1976), Article 7 of the same Act provides that the act of acquiring State property in the name of an employee engaged in the affairs related to state property shall be null and void as an evasion of law to avoid the application of the same Act, which is a mandatory law, unless there is a separate provision that restricts the other party who can assert the invalidation for the purpose of protecting transaction safety, and thus, the act of acquiring State property by a third party in violation of the above provision shall be null and void as a matter of principle, unless there is a separate provision that restricts the other party who can assert the invalidation in order to protect transaction safety. Thus, the act of acquiring State property by a third party in violation of the above provision shall also be null and void.

[2] The res judicata effect of a final and conclusive judgment is only derived from the conclusion of the judgment on the existence of legal relations claimed as a subject matter of lawsuit, that is, the conclusion of the judgment on the existence of such legal relations itself, and res judicata effect of the final and conclusive judgment on the claim for the performance of the procedure for the registration of ownership transfer does not affect the existence of the right to claim the registration of ownership transfer, and it does not affect the existence of the right to claim the registration of ownership of the subject matter of lawsuit. Thus, the party who

[3] In the course of performing his duties, employees in government offices incurred losses by acquiring land under their own name in violation of Article 7 of the former State Property Act (amended by Act No. 2950 of Dec. 31, 1976) and completing a registration of ownership transfer which is invalid for cause by making a third party trusted his wife as a genuine owner and making contributions to acquire the land, and thus, a third party may claim damages against the State. Thus, even if the State can claim damages against the State, the action seeking the implementation of the procedure for ownership transfer registration for the restoration of real name against the third party based on the ownership of the land cannot be deemed as contrary to the definition of justice, equity, or good faith. It cannot be deemed that the obligation of the State to perform the procedure for ownership transfer registration to the third party and the obligation to compensate for damages due to the tort against the third party of the State is either a quid pro quo or a quid pro quo relationship in light of the concept of fairness or the good faith principle.

[1] Article 7 of the former State Property Act (amended by Act No. 2950 of Dec. 31, 1976) / [2] Article 202 of the Civil Procedure Act / [3] Articles 2, 536, 750, and 756 of the Civil Act

[1] Supreme Court Decision 94Do2048 delivered on October 21, 1994 (Gong1994Ha, 3158), Supreme Court Decision 94Da43207 delivered on April 26, 1996 (Gong1996Sang, 167) / [2] Supreme Court Decision 86Da1958 delivered on March 24, 1987 (Gong1987, 722 delivered on January 12, 1990) Supreme Court Decision 91Da8159 delivered on December 13, 191 (Gong192, 501)

Korea

Park Won-won et al. and 13 others (Attorney Park Young-chul, Counsel for the defendant-appellant)

Gwangju High Court Decision 96Na180 delivered on August 22, 1996

All appeals are dismissed. The costs of appeal are assessed against the Defendants.

The grounds of appeal are examined.

1. On the first ground for appeal

Article 7 (A) of the former State Property Act (amended by Act No. 2950 of Dec. 31, 1976) provides that an employee engaged in the affairs related to State property shall strictly prohibit an employee from acquiring State property under the name of another person by pointing out the most conspicuous act that may be suspected of having committed an unlawful act in order to promote fairness in the affairs related to the disposal of State property in accordance with the legislative intent of Article 1 of the same Act, and that an employee engaged in the affairs related to State property shall be null and void as an evasion of law to avoid the application of the provisions of the same Act, which is a mandatory law, and further, unless the same Act does not provide for a provision that restricts the other party who may assert the invalidation in order to protect transaction safety, such an act shall be deemed null and void as a matter of principle (see, e.g., Supreme Court Decision 2004Do4984, Oct. 21, 194; 2004Da47964, Apr. 36, 2096).

According to the reasoning of the judgment of the court below, the court below held that the plaintiff, who had been engaged in the business of appraisal, public auction, bidding, conclusion of a sales contract, etc. of state property while holding office with the general secretary of the tax office, was exempted from the land of 21-1, 2, and 3 in the name of the non-party 2, the non-party 2, who was in the name of the non-party 2, and was in the name of the non-party 2, and was in the name of the non-party 1, the non-party 2, who was in the name of the non-party 2, and was in the name of the non-party 1, the non-party 2, the non-party 2, who was in the name of the non-party 1, the non-party 2, and the non-party 2, the non-party 2, who was in the name of the non-party 1, the non-party 2, the non-party 1, the non-party 2, the non-party 1, the non-party 2, the ownership of this case.

2. On the second ground for appeal

The res judicata effect of a final and conclusive judgment is only derived from the conclusion of the judgment on the existence of legal relations asserted as a subject matter of lawsuit, that is, the conclusion of the judgment on the existence of such legal relations itself, and res judicata effect of the final and conclusive judgment on the claim for the performance of the procedure for the registration of ownership transfer does not affect the existence of the right to ownership of the subject matter of lawsuit (see, e.g., Supreme Court Decisions 86Da1958, Mar. 24, 1987; 88Da24622, Jan. 12, 1990; 91Da8159, Dec. 13, 1991; 91Da8159, Dec. 13, 1991). Thus, the party who has lost the lawsuit for the registration of ownership transfer can seek the confirmation of ownership or file a claim for the registration of ownership transfer

Therefore, even if the plaintiff was rendered a final and conclusive judgment against the plaintiff in the lawsuit claiming ownership transfer registration as above, the subject matter of the final and conclusive judgment is the non-party 2's right to claim ownership transfer registration against the plaintiff and the non-party 2's right to claim ownership transfer registration against the non-party 10, such as the non-party 2's right to claim ownership transfer registration against the non-party 2, such as the non-party 10, such as the non-party 10, such as the non-party 10, such right to claim ownership transfer registration as the effect of ownership of the land of this case and the ownership of the land of this case is not the owner or the right holder on the register, and the subject matter of the lawsuit of this case differs from each other, and it cannot

In the above purport, the judgment of the court below that the res judicata of the above final and conclusive judgment does not extend to this case is just, and there is no error in the misapprehension of legal principles as otherwise alleged in the ground of appeal. The grounds of appeal on this point

3. On the third ground for appeal

In light of the records, if the sale contract between the plaintiff and the non-party 2 on September 30, 1974 becomes null and void, the registration of ownership transfer made in the future on the land of this case is null and void, and the registration of ownership transfer in the future of the defendants, which had been made accordingly, cannot be exempted from being null and void. In this case, the defendants suffered losses equivalent to the amount they contributed to acquire the land of this case, and the plaintiff will gain profits equivalent to the amount of the purchase price paid from the non-party 2, while the plaintiff merely received the purchase price of the State property from the non-party 2, regardless of the above contributions made by the defendants. However, it is difficult to view that there exists a social causal relationship between the profits that the plaintiff acquired and losses incurred by the defendants from paying the purchase price of the land of this case to the non-party 2, Gim, etc., and therefore, the defendants cannot be deemed to have the right to claim the return of unjust enrichment against the plaintiff.

In addition, in performing his duties, the Plaintiff, who is a public official belonging to the Plaintiff, acquired the instant land in his name in violation of Article 7 of the former State Property Act and completed the registration of ownership transfer, which is null and void, thereby causing losses to the Defendants who trusted Nonparty 2, thereby making a contribution to acquire the instant land as a real owner, and thereby claiming damages against the Plaintiff, even though the Defendants may claim damages against the Plaintiff, the instant lawsuit seeking the implementation of the procedures for the registration of ownership transfer for the restoration of real name to the Defendants based on the ownership of the instant land cannot be deemed to be contrary to the justice, equity, or good faith. The Defendants’ obligation to implement the procedures for ownership transfer registration against the Plaintiff and the liability for damages against the Defendants for the said tort cannot be deemed to have been in a quid pro quoous relationship or in light of the concept of fairness or good faith.

The court below is just in rejecting the claim that the plaintiff should accept the plaintiff's claim of this case in return for the above unjust enrichment or damages even if the plaintiff's claim of this case cannot be permitted under the principle of good faith, since the plaintiff's claim of this case is a claim for restitution of unjust enrichment or tort against the plaintiff, and there is no error in the misapprehension of legal principles as otherwise alleged in the ground of appeal. The ground of appeal

4. On the fourth ground for appeal

In light of the records, there is no evidence to deem that the plaintiff's lawsuit of this case is contrary to the principle of good faith and trust and good faith, and the court below has no evidence to acknowledge that the plaintiff ratified the contract of this case with the knowledge that the contract of this case was null and void, and thus rejection of the above defense by the defendants is also justifiable, and there is no violation of the rules of evidence or incomplete hearing in the judgment below. The grounds for appeal

5. Therefore, all appeals are dismissed, and the costs of appeal are assessed against the defendants who are appellant. It is so decided as per Disposition by the assent of all participating Justices.

Justices Park Jong-chul (Presiding Justice)