[유지인도및손해배상][집14(1)민,076]
Where the period of prescriptive acquisition of real estate has expired after the enforcement of the new Civil Act, but registration has not been passed despite the expiration of the period of prescriptive acquisition after the enforcement of the new Civil Act, matters to be deliberated on by a person who owns the real estate, on the premise of rejecting the claim for damages due to entertainment against the person who owns the real estate.
In respect of a possessor for whom the right to claim the transfer registration of ownership is finally determined due to the expiration of the acquisition period, the nominal owner of the ownership is obligated to acquire ownership retroactively from the commencement of possession by implementing the registration procedure, and such nominal owner may not claim compensation for any damage incurred by the possession of the real estate.
Article 245 of the Civil Act, Article 126 of the Civil Procedure Act
[Judgment of the court below]
Kim Jong-gun (Attorney Yu Chang-chul, Counsel for defendant-appellant)
Jeonju District Court Decision 65Na153 delivered on October 8, 1965
The original judgment shall be reversed, and
The case shall be remanded to the Jeonju District Court Panel Division.
Plaintiff 1’s ground of appeal No. 1
Even though the original judgment was compared to the records, it cannot be found that there was an error of logic or rule of experience in the contents of the preparation of evidence and the process of fact-finding in the original judgment, and therefore, it is without merit that the lower court’s exclusive decision was based on the premise of an independent value judgment as to the evidence in question, and that it was against the deliberation of evidence and fact-finding
The second ground of appeal No. 2
The defendant asserts that since October 1943, the defendant occupied this case as the owner's intention. The plaintiff argues that the defendant occupied this case from November 194, and that it is illegal to recognize that the defendant occupied this case from October 1943 to October 194 to the extent of the plaintiff's fact alleged by the court below. Thus, the argument is without merit.
The third ground of appeal is examined as follows:
According to Article 8 (3) of the Addenda to the Civil Act and Article 245 (1) of the Civil Act, even if a person who occupied real estate from the time when the Civil Act enters into force, has acquired ownership of the real estate due to the expiration of the acquisition period due to possession after the enforcement of the new Civil Act: Provided, That where a possessor who acquired the real estate after the acquisition period has expired claims for ownership transfer registration due to the expiration of the acquisition period against the title holder, even though he did not yet acquire ownership, the possessor is obligated to perform the procedure for ownership transfer registration and have the possessor acquire ownership retroactively from the commencement of possession, and thus, he cannot claim compensation for damages due to possession of the real estate. However, without examining the relation of registration, the court below determined that the defendant acquired ownership of the real estate retroactively from the time when the possession was acquired due to the expiration of the acquisition period due to possession of the real estate from the date of original purchase, and rejected the plaintiff's claim for ownership transfer registration without deliberation by the court below.
Therefore, the case shall be remanded to the Jeonju District Court Panel Division which is the original judgment. It is so decided as per Disposition by the assent of all participating Justices.
Supreme Court Judge Madung (Presiding Judge) Kim Gung-bun and Madlebro