2014Da54021(S) Elimination of a building

F

(Counterclaim) Judgment

1. In a case where the purchaser of the land acquired the possession of the land for the purpose by the sale and purchase contract for the first ground for the first ground for the purchase and sale of the land owned by another person, even if the purchaser is unable to acquire the ownership immediately due to the sale and purchase of the land, it cannot be readily concluded that the purchaser obtained the possession on the basis of the title which appears to have no intention to own in the nature of the possessory right by virtue of the nature of the possessory right. Moreover, unless special circumstances are proved, such as the purchaser knowingly purchased the land with the knowledge that the seller did not have the right to dispose of it, the presumption of possession of the buyer’s intent to own cannot be said to be broken (see, e.g., Supreme Court Decisions 93Da1886, Oct. 12, 1993; 97Da37661, Mar. 16,

The court below rejected the defendant's assertion that the possession of J constitutes the possession of a third party on the ground that it is difficult to recognize that the presumption of possession of J was broken solely because J purchased the land of this case from the reserve forces, in light of the fact that the practice of real estate transaction pursuant to the former Civil Act, which adopted the principle of intention for a considerable period after the enforcement of the current Civil Act, was remaining, and that the company of Q2 reserve forces in Seocheon-gun, Seocheon-gun, Q2 would have a good organization and representative and engage in social activities in light of the general public.

Examining the reasoning of the lower judgment in light of the aforementioned legal principles and records, the lower court’s determination is justifiable, and contrary to what is alleged in the grounds of appeal, there were no errors by misapprehending the legal doctrine regarding the mode of possession, or by exceeding the bounds of the

2. On the second ground for appeal

A. Even if the prescription period for the acquisition of real estate has expired, if the lawful and effective transfer registration of ownership is completed to a third party with respect to the real estate without registration, the possessor may not oppose the third party. Barring special circumstances, such as where one of the successors has obtained a donation from the decedent who is the owner, and completed the registration of ownership transfer with the donation from the decedent who is the owner, and the donation can be deemed as identical with the consultation and division of the real inherited property, the registered titleholder cannot be regarded as the person in the same position as the owner in the relationship with the possessor, and it shall be regarded as a new interested party after the completion of the prescription period (see, e.g., Supreme Court Decisions 97Da34013, Nov. 11, 1997; 2002Da60290, Sept. 24, 2004).

B. The court below acknowledged that the husband J of the Plaintiff (Counterclaim Defendant; hereinafter “Plaintiff”) occupied the instant land from January 29, 197 to 20 years, and succeeded to the Plaintiff’s possession on or around July 1, 2003, that the Plaintiff completed the registration of ownership transfer on the instant land due to donation to the Defendant (Counterclaim Plaintiff; hereinafter “Defendant”) who was the owner of the instant land on July 1, 1999, and that the Defendant, who was living in the same region as the Plaintiff, was aware of the completion of the registration of ownership transfer at the time of the above transfer, was aware of the completion of the registration of ownership transfer. Nevertheless, the Defendant claimed from 00 the transfer of the instant land to J on the instant land, which could not be asserted against the registration titleholder at the time of the completion of the acquisition by prescription, and the Defendant could not be viewed to have had the right to acquire ownership transfer on or after the expiration of the acquisition period under the name of the Defendant, which was not a new one with the right to acquire the instant land under the name of the Defendant’s heir or the title.

C. However, we cannot accept the above determination by the court below for the following reasons.

According to the records, the fact that 0 completed the registration of ownership transfer for the gift of the instant land to the Defendant is 12 years prior to the time of death of 0, and the instant land was owned by a number of parcels of land besides the instant land. However, from the 1980s to the 2000s, three children among 7 children have completed the registration of ownership transfer for the reason of donation on several occasions due to non-permanent rules, and even after the death of 01, the land still registered in the name of 0 remains as 13 pieces of land.

In light of the above facts, it is difficult to see that there are special circumstances, such as that the donation to the defendant 0 by the defendant 1 is identical with the consultation division of the actual inherited property, and no other circumstance exists to deem that the donation to the defendant 1 is identical to the actual inherited property. Thus, in light of the legal principles as seen earlier, insofar as it cannot be acknowledged that the special circumstances such as the above-mentioned donation to the defendant 0 can be the same as the consultation division of the actual inherited property, the defendant, who completed the registration of ownership transfer after the completion of the acquisition period, cannot be deemed as the person in the same position as the previous owner in relation to the possessor, and

However, a real estate owner's transfer of ownership by disposing of the real estate to a third party with the knowledge of the completion of the acquisition by transfer of ownership transfer shall be deemed to constitute a tort if the claimant for the acquisition by prescription suffered damages by the person who asserts the acquisition by prescription, and if the third party who acquired the real estate actively participated in such tort by the real estate owner, it shall be deemed null and void as an act contrary to social order (see, e.g., Supreme Court Decisions 94Da52416, Jun. 30, 1995; 2001Da77352, 77369, Mar. 15, 2002).

However, the record reveals the fact that the Defendant sent J with the content of requesting the payment of usage fees, etc. immediately after the completion of the ownership transfer registration on the land of this case. However, in light of the content of the above, the J appears to have claimed the ownership of the Plaintiff immediately after the Defendant’s registration and sent it to the Defendant with the answer to the issue of the Defendant’s registration. In addition, even if the court below fully examined the remaining circumstances, it is insufficient to view that the Defendant and 0 knew of the completion of the acquisition by prescription of J at the time and completed the ownership transfer registration on the ground of donation as above, it cannot be deemed that the Plaintiff’s donation to the Defendant is against the social order. Ultimately, the Plaintiff cannot be viewed as an act contrary to the social order. Nevertheless, the lower court determined that the Defendant did not constitute a third party who completed the ownership transfer registration after the completion of the acquisition by prescription of possession that cannot be set up against the completion of the ownership transfer registration after the completion of the acquisition by prescription, and accepted the Defendant’s claim for the counterclaim against the transfer of land on the ground of the Plaintiff’s acquisition by prescription.

3. Conclusion

The lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Go Young-young

Justices Kim In-young

Justices Park Jae-young