상속재산분할협의를 원인으로 한 부동산 물권변동의 성립요건과 소유권 관련 청구의 소송상 취급 - 대상판결: 대법원 2011. 6. 30. 선고 2011다24340 판결 -

The type of joinder of claims is decided by the relationship between the joined claims, not by a plaintiff’s choice. When a plaintiff seeks a judgment alternatively on two or more independent claims in a single lawsuit, the presiding judge shall exercise his/her authority to order the parties to explain and clarify the matters in question and lead the plaintiff to revise the request of the complaint by which he/she seeks relief on all claims respectively. If a court renders a judgment on only one claim among joined ones mistakenly believing that these claims are alternative ones, even though they are independent, the remaining undecided claims are to be separated from the decided one and pending in the court. In this case, the plaintiff’s claim for affirmation of the ownership of two thirds share of the land in dispute, and the claim for cancellation of defendant’s ownership registration for the same land are independent in their nature, but the plaintiff sought only one judgment alternatively on the above two claims, and henceforth each court of all levels including the Supreme Court which reversed the judgment of the second instance court and remanded this case to the same court, treated joinder of these claims as such, and the second instance court rendered judgment on the claim for ownership affirmation leaving the latter claim undecided. This error amounts to a faulty omission of adjudication and the second instance court should have given additional judgment on the latter claim. Before this litigation, the plaintiff had filed two separate lawsuits against the defendant seeking affirmation of ownership and cancellation of the defendant’s registration for this whole land inherited from the plaintiff’s deceased father, and one of courts had partly accepted his claim for affirmation of ownership for one third share of it and the rest of his claims had been denied. Just afterward, the plaintiff reached an agreement for the division of inherited property with other heirs of his deceased father, in which the other heirs agreed to transfer their shares of this land to him. Then he filed this litigation seeking affirmation of ownership and cancellation of registration for two thirds share of this land, in which the Supreme Court decided that the previous final judgments did not preclude the plaintiff’s former claim on the ground that he newly acquired the fractional ownership of this land while they barred the latter claim. However, if the plaintiff becomes a sole owner of this land, such a change of fact after the previous trials is deemed to sever the influence of Res Judicata or Collateral Estoppel of the judgments in the previous cases pertaining to both claims. The decision of the Supreme Court was based on the presumption that the plaintiff’s acquisition of the two thirds share of this land took effect. However, title transfer of a land takes place only at the time when ownership transfer registration is successfully completed. It is evident that the plaintiff did not have the two thirds share of this land registered in his name, but the defendant had. Article 186 of the Korean Civil Code applies to agreement for division of inherited property among legal heirs, which stipulates that acquisitions of, losses of and changes in real rights concerning immovable properties by contract does not take effect, unless the same are registered pursuant to the applicable provisions of the Real Estate Registration Act. In conclusion, the plaintiff is not the title holder of this land. Therefore, the Supreme Court should have decided in this case that plaintiff’s both claims run against the effects of Res Judicata or Collateral Estoppel of the final judgments in the previous cases.