[2] The case holding that the possessor cannot seek removal of the newly constructed building against the original owner, in case where the possessor who was holding the building on the boundary of the neighboring site completed the prescriptive acquisition for the part of the site but was aware of it and did not exercise the right to claim the transfer registration for the completion of the prescriptive acquisition against the original owner, or where the original owner who was unaware of the completion of the prescriptive acquisition for the reason that he had built the building on the part of the site and completed the transfer registration for the completion of the prescriptive acquisition

[2] The case holding that, in a case where the original owner, who was in possession of a building over the boundary of an adjacent site, was completed the prescriptive acquisition for the said part of the site, but was aware of it as owned by himself and did not exercise his right to claim the removal of the building on the ground of the completion of the prescriptive acquisition, and subsequently completed the registration of ownership transfer for the reason of the completion of the prescriptive acquisition, the original owner, who was aware of it as owned by himself, newly constructed the building on the site and completed the registration of ownership transfer for the part of the site, the possessor shall be deemed to have acquired the ownership of the building on the ground, and thus, the possessor cannot seek removal of the building on the original owner on the ground that he acquired the ownership of the site after the change in the possession

1. According to the reasoning of the lower judgment, the facts and judgment established by the lower court are as follows.

A. The land of this case, which was originally owned by the Defendant, is divided into approximately 10 square meters ( Address 1 omitted) and approximately 94 square meters (hereinafter “the site of this case”), which were owned by the Defendant, is adjacent to the site owned by the Plaintiff ( Address 3 omitted), and the Plaintiff purchased, occupied, and used the land from Nonparty 1 from February 21, 1983 to around March 12, 1968, and part of the house of this case is located on the site of this case.

Around October 191, the Defendant surveyed the boundary between the ( Address 2 omitted) site and the ( Address 3 omitted) site prior to partition, including the instant site owned by his owner, and completed the construction of the second floor building on December 20, 1991 with the authority’s building permission on February 20, 1991 and with the design change permission on February 13, 1992, and completed the construction of the second floor building on March 13, 1992. Since the part of the instant building in the judgment of the lower court out of the second floor of the new building protrudings to the airspace of the instant site, the instant part of the instant building owned by the Plaintiff was located on the ground of the instant site, and that the upper part of the instant building owned by the Defendant was located on the lower part.

From January 1, 1992, the plaintiff raised an objection to the boundary between the above sites, and filed a lawsuit against the defendant on March 16, 1992, after the completion of the defendant's second floor building, the plaintiff filed a lawsuit against the defendant for the removal of the part of the building of this case and the transfer of the site. As a result of the survey, it is found that the non-story house owned by the plaintiff was in violation of the above ( Address 2 omitted) site before the division owned by the defendant. As a result, it was found that the non-story house owned by the plaintiff was in violation of the above ( Address 2 omitted) site before the division into March 12, 198, the purport and reason of the claim were modified, and the procedure for the transfer registration of ownership was implemented on March 12, 198 with respect to the site of this case where the non-story house owned by the plaintiff was constructed, but the plaintiff's claim was dismissed in the appellate court's judgment in favor of the plaintiff on July 13, 1994.

On the other hand, the part of the building of this case is expected to require considerable cost to the defendant if it is removed as a living room, room, and roof balcony, which are part of the second floor of the building as stated in the attached Table of the judgment below newly constructed by the defendant, and the part of the second floor of the building remaining after the removal is expected to cause a significant obstacle to its original use.

B. The lower court determined as follows based on the above facts, on the ground that the Plaintiff sought removal of the part of the instant building owned by the Defendant based on the ownership of the instant building site, and that the Defendant acquired the Plaintiff’s ownership was conducted under the condition that it permits the existence of the instant building part, and that the Plaintiff’s request for removal constituted either a violation of the good faith principle or an abuse

Article 247(1) of the Civil Act that a person who acquired ownership upon completion of the acquisition by prescription takes place after completing the registration of ownership transfer, and Article 247(1) of the Civil Act that the possession prior to the acquisition of ownership is retroactive to the time of commencement of possession. Since it means the passive effect that possession prior to the acquisition by prescription does not constitute an illegal possession in relation to the previous owner, the prescriptive acquisitor’s assertion for the completion of the acquisition by prescription also denies the effect of the exercise of his/her right based on his/her ownership before the acquisition of ownership, and it does not mean the right to make a change retroactively to the right to

Therefore, prior to the plaintiff's assertion for the completion of the prescriptive acquisition, the plaintiff newly constructed and completed the building in the separate sheet as a legitimate owner of the land in this case as stated in the judgment below, and the plaintiff must allow the existence of the part of the building in this case, which is part of the building in this case, and under such circumstances the plaintiff acquired ownership through the completion of the prescriptive acquisition. In addition, the plaintiff's claim for the removal of the building in this case cannot be rejected because the plaintiff's claim constitutes abuse of rights because the plaintiff's claim for removal of the building in this case is against the principle of good faith or because it constitutes abuse of rights, even if the plaintiff acquired profits from the ownership of the land in this case without any payment to the defendant while owning the building in this case due to the boundary of the building in this case.

2. Regarding ground of appeal No. 1

Unless there are special circumstances, such as filing a request for ownership transfer registration on the ground of expiration of the prescriptive acquisition period for the reason that the possessor’s possession on the original owner has expired, the original owner may exercise his/her lawful right to the land as the owner until he/she has completed the ownership transfer registration in the name of the possessor, and thus, if there is a change in the situation of possession on the land of the possessor due to the exercise of his/her right, the possessor who has completed the registration of ownership transfer should be allowed to allow the changed possession.

However, according to the reasoning of the judgment below and the records, the plaintiff knew that the land in this case was part of the site above ( Address 3 omitted) which he owned until the defendant newly constructed the building in this case, and did not assert his right or exercise his right to claim the transfer registration for the reason of the completion of the acquisition by prescription for the site in this case, and the defendant himself was unaware of the completion of the acquisition by prescription as at the time of the new construction of the building in this case. Thus, as long as the part of the building in this case newly constructed on his own land was protruding out to the air space in this case, and then the ownership transfer registration for the site in this case was completed, the plaintiff acquired the ownership of the land in this case as at the time the part in this case exists in the building in this case, and therefore, it is not possible to seek the removal of the part of the building in this case.

The judgment of the court below to the same purport is just and acceptable, and there is no error in the misapprehension of legal principles as to the prescriptive acquisition. The grounds of appeal cannot be accepted.

3. Regarding ground of appeal No. 2

According to the reasoning of the judgment below, the court below determined that the plaintiff's claim in this case cannot be allowed because it violates the good faith principle or constitutes an abuse of rights. However, as long as the plaintiff did not have the right to remove the building in this case, the legitimacy of the judgment below's above cannot be a ground affecting the judgment below. This part of the ground of appeal cannot be accepted.

4. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the plaintiff-Appellant. It is so decided as per Disposition by the assent of all Justices who reviewed the appeal.

Justices Jeong Jong-ho (Presiding Justice)