Plaintiff (Law Firm Pakistan, Attorneys Cho Jae-soo et al., Counsel for the plaintiff-appellant)

NON Construction Co., Ltd. (Law Firm LLC, Attorneys Kim Tae-dae, Counsel for the plaintiff-appellant)

June 28, 2019

Suwon District Court Decision 2018Gahap5323 decided January 16, 2019

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

1. Purport of claim

The Defendant, as the Plaintiff

A. During the procedure for cancellation of registration of the provisional registration of the right to claim transfer of shares completed under No. 13526 of April 14, 2009 with respect to Nonparty 2-4/10 of the real estate listed in the separate sheet Nos. 1 through 7 and the co-ownership of Nonparty 3-1/10 of the co-ownership of Nonparty 3’s co-ownership;

B. As to the real estate listed in No. 8 of the annexed list No. 8, the Suwon District Court Yangyang-si registry office of the Suwon District Court will implement the procedure for cancellation of the registration of the right to claim transfer of ownership completed on April 14, 2009.

2. Purport of appeal

The judgment of the first instance is revoked, and the plaintiff's claim is dismissed.

1. Quotation of the first instance judgment

The reasoning of the judgment of this court is as stated in the reasoning of the judgment of the court of first instance, except for the second to 18 lines (Article 420 of the Civil Procedure Act) of the fourth to 7 lines in the judgment of the court of first instance (Article 42 of the Grounds for Appeal 2).

2. Parts in height:

2. Determination as to whether or not it conflicts with the res judicata

A. Summary of the defendant's assertion

The lawsuit of this case is identical to the previous suit of this case in which the dismissal judgment has become final and conclusive, and the plaintiff constitutes a successor after the closing of argument in the previous suit of this case. The previous suit of this case in which the dismissal judgment has become final and conclusive is seeking the cancellation of provisional registration of the defendant as a exclusion of interference based on the right of the right holder, such as the plaintiff, the non-party 2, etc., as the right holder. The lawsuit of this case is identical since the plaintiff seeks the cancellation of provisional registration as a exclusion of interference based on the right of right based on the collective security acquired by the plaintiff from the non-party 2, etc., after the judgment of the previous suit of this case became final and conclusive, as a claim for the exclusion of interference based on the right of collateral security acquired by the plaintiff

Therefore, the instant lawsuit shall be dismissed or dismissed in conflict with the res judicata of the final and conclusive judgment in the previous suit of this case.

B. Determination

The subject matter of the claim for the exclusion of disturbance based on the ownership is not the land ownership but the claim for the exclusion of disturbance, which is the real right right, so res judicata effect of the final judgment of dismissal in the lawsuit is limited to the existence of the claim for exclusion of disturbance itself, and it does not extend to the existence of the land ownership which is not the subject matter of the lawsuit. Therefore, the existence of the third person who succeeded to the ownership shall not affect res judicata effect of the above final judgment as to the existence of the land ownership by purchasing the land from the losing land owner and completing the registration of ownership transfer from the losing land owner after the closure of arguments in the lawsuit for exclusion of disturbance, and in this case, the claim for exclusion of disturbance, which is the real right claim that the third person is the subject matter of the above third person, shall become the general effect of the right legally succeeded, and it shall not be deemed that the third person becomes a successor after the conclusion of arguments in the above final judgment (see, e.g., Supreme Court Decisions 84Meu148, Sept. 25, 1984; 25, Oct. 26, 1999).

In light of the above legal principles, the subject matter of a prior suit of this case is the cause of a claim for cancellation of each provisional registration of this case which interferes with ownership, and it does not seek confirmation of the existence of ownership itself. Thus, res judicata of the dismissal judgment of this case which became final and conclusive in the lawsuit of this case does not affect the existence of the right to claim cancellation of each provisional registration of this case, and it does not affect the existence of ownership. Therefore, the res judicata of the above final judgment does not affect the conclusion of res judicata of the final and conclusive judgment as to the existence of ownership of each of the instant real estate of this case by purchasing each of the instant real estate from Nonparty 2, etc. who was the losing party after the closure of the arguments of the previous suit of this case and completing the registration of transfer of ownership. The right to claim cancellation of each provisional registration of this case, which is a real right claim to be established by the third party, is the general effect of ownership of each of the instant real estate legally succeeded, and it cannot be said that the right to claim cancellation of the provisional registration of this case becomes a successor after the final and conclusive judgment.

As such, insofar as a third party who acquired and succeeded to the ownership of each real estate of this case from Nonparty 2, etc. after the conclusion of the fact-finding hearing of the previous suit of this case does not fall under a successor after the conclusion of pleadings as seen earlier, the Plaintiff who acquired the right to collateral security, which is a part of the ownership of each real estate of this case, by the creation succession, cannot be deemed to fall under a successor after the conclusion of pleadings

Therefore, the first defendant's argument is rejected on a different premise.

3. Conclusion

Therefore, the first instance judgment is just, and the defendant's appeal is dismissed as it is without merit, and it is so decided as per Disposition.

[Attachment]

Judges Jin assistant (Presiding Judge) Kim Jong-seok Kim Jae-young