[건물철거등청구사건][고집1979민,160]
Whether the temporary injunction against the direct possessor's transfer of possession is a ground for suspending the prescriptive acquisition against the indirect possessor.
Even if the plaintiff received a provisional disposition prohibiting the transfer of possession from the direct occupant and executed it, it is not directly against the indirect occupant who is entitled to benefit from the acquisition by prescription, and as long as the plaintiff did not notify the indirect occupant thereof, the interruption of prescription has no effect.
Articles 169, 170, and 176 of the Civil Act
Senior Soldiers' Service
Woo-man et al.
Suwon support (75Gahap272) by means of Seoul Civil History in the first instance trial (75Gahap272)
The appeal is dismissed.
Expenses for appeal shall be borne by the plaintiff.
The plaintiff shall revoke the original judgment.
원고에게 피고 정대석은 경기 평택읍 통복리 112의 5대 153평 8홉 및 같은리 112의 9 대 47평 7홉 양지상에 건립된 목조와즙 평가건 점포 및 주택 1동 건평 43명 6홉중 별지도면표지 6,5,4,21,22,6.을 순차로 연결한 선으로 포위된(자)부분 5평 5홉에서 퇴거하고, 피고 박영찬은 같은리 112의9 지상 세멘부록조 와즙평가건 주택 1동 건평 15평 7홉5작(별지도면 표시(바)부분)에서 퇴거하고, 피고 전응복은 위 양건물중 위(자)부분 5평 5홉, (바)부분 15평7홉5작과 같은리 112의5 및 112의9 양지상에 건립된 세멘부록조 스레트즙 평가건 장독대 1동 건평 3평중 같은 도면표시 ㅍ, 9,8,7,ㅎ,ㅍ의 각 점을 순차로 연결한 선으로 포위된 (아)부분 1평을 각 철거하여, 같은리 112의9 대47평 7홉을 인도하고, 1975.4.3.부터 위 대지 인도완료시까지 매월 금 23,850원의 비율에 의한 금원을 지급하라는 판결을 구하였고, 위 금원지급 부분에 대한 예비적 청구로서 피고 전응복은 1975.1.1.부터 위 대지인도 완료시까지 연금 232,299원의 비율에 의한 금원을 지급하라는 판결을 구하였다.
The above portion of Gap evidence Nos. 1, 2, 3, and 1, 7,14 of evidence Nos. 1,2, 7, 13, and 12 of evidence Nos. 12 of the court below and the court below's result of on-site verification of land substitution documents, the court below's appraisal result of 110-4, 33 of the court below's land No. 110-4 (hereinafter referred to as the "previous land") was originally owned by the non-party No. 1971 of this case's land No. 97 of this case's previous land No. 97 of this case's land No. 197 of this case's land No. 97 of this case's land No. 97 of this case's land No. 197 of this case's previous land No. 97 of this case's land No. 197 of this case's land No. 97 of this case's land No. 197 of this case's heir No. 1971 of this case'
The plaintiff asserts that the plaintiff's transfer of ownership under the name of the plaintiff is based on the ownership of the land in this case since the plaintiff occupied the building on the above site or occupied the above building on the above site without any right. If the plaintiff failed to fully acquire the above ownership, the plaintiff's transfer of ownership is an act of preserving one of the co-owners, and the defendant's return of the above (i) and (f) parts among the above buildings and the part among the above buildings, the transfer of the site, and the return of the rent-making party's unjust enrichment on the above site from April 3, 1975 to the completion of delivery of the above site, and the amount of money in proportion to 23,850 won per month is sought from April 3, 1975 to the completion of delivery of the above site. The plaintiff asserted that the amount of money in proportion to 232,299 won per annum from January 1, 1975 to the completion of delivery of the above site.
However, the Defendants asserted that it would not be possible to accept the Plaintiff’s request due to the completion of the registration of ownership transfer by continuously occupying the above land as owned by the intention of 20 years. As such, in light of the following: (a) No. 4-1,2, and No. 3 of the evidence which is recognized as genuine by testimony of the maximumness of witness at the lower court; (b) the testimony of the witness at the lower court; (c) the testimony of the completion of the construction of the new building; and (d) the examination result of the party concerned; and (d) the remaining removal of the previous building site after the completion of the construction of the new building on the 7th anniversary of the acquisition of the previous building on the 1949 raw land; and (e) the Plaintiff, who purchased the previous land on the 197th anniversary of the original owner of the previous building on the 196th anniversary of the acquisition date of the new building on the 196th anniversary of the acquisition date of the new building on the 196th anniversary of the acquisition date.
As to this, the plaintiff first purchased the land of this case, even if he purchased the land of this case, 10 years have passed since January 1, 1960, the enforcement date of the current Civil Act, and 10 years have passed since December 31, 1966. Second, the plaintiff registered his own name on January 25, 1971, when the prescription period of the defendants' assertion was in progress, and third, the plaintiff issued a provisional disposition prohibiting the transfer of possession as Seoul District Court 72k292 on April 6, 1972 against the defendant Jeong Jong-ho, who is the direct possessor of this case. Thus, the above prescription period is still in effect for the above three reasons, and it cannot be acknowledged that the above provisional disposition had been suspended for 7 years since he purchased the land of this case, or before the enforcement date of the current Civil Act, it cannot be acknowledged that the plaintiff's ownership transfer registration was in effect against the defendant 2 as the result of the above provisional disposition suspending the prescription period of this case.
Therefore, the plaintiff's claim of this case is without merit because it is not necessary to determine the remaining points of the defendant's argument, and it is dismissed. The plaintiff's appeal is just and without merit, and the plaintiff's appeal is dismissed, and the costs of appeal are assessed against the plaintiff who has lost. It is so decided as per Disposition.
Judge Jeon Byung-chul (Presiding Judge)