[담장철거등,소유권이전등기][공1995.8.1.(997),2510]
Whether the current possessor who succeeds to the possession from the possessor at the time of the completion of the prescription has the right to claim the transfer registration procedure directly in his/her own name by claiming the effect of the completion of the prescription period for acquisition.
The person who acquires by prescription the right to claim the transfer registration of ownership against the title holder of real estate due to the completion of the prescription is limited to the possessor at the time of the completion of the prescription. As such, the current possessor who has succeeded to the possession of land before the expiration of the prescription can exercise the right to claim the transfer registration of ownership against the title holder in order to preserve his/her right to claim the transfer registration of ownership, and there is no right to claim the transfer registration directly against himself/herself
Articles 199, 245(1), and 404 of the Civil Act
Supreme Court en banc Decision 93Da47745 delivered on March 28, 1995 (Gong1995Sang, 1609)
Plaintiff (Counterclaim Defendant)
Defendant (Counterclaim Plaintiff)
Seoul Civil District Court Decision 94Na4146, 94Na41453 (Counterclaim) decided February 10, 1995
The judgment below is reversed and the case is remanded to the Seoul District Court Panel Division.
1. Summary of the reasoning of the judgment below
According to the reasoning of the judgment below, the above part of the land was owned by the non-party 1 and the non-party 2 on the non-party 1 and the non-party 2 on the non-party 3's land (the non-party 2 omitted)'s non-party 1 and the non-party 3's ownership transfer registration on the non-party 2's land (the non-party 2 omitted)'s non-party 4 and the non-party 2's non-party 9's non-party 2's non-party 9's non-party 2's non-party 2's non-party 9's non-party 2's non-party 2's non-party 2's non-party 2's non-party 9's non-party 2's non-party 2's non-party 4's non-party 1 and the non-party 2's non-party 2's non-party 3's non-party 9's non-party 2's non-party
2. Judgment of party members
First, we examine the second ground for appeal.
As long as the Defendant claimed the counterclaim against the Plaintiff on the ground of the completion of the prescription period, and claimed the period of possession by Nonparty 1 on the basis of the end of April 1964, which was the time of Non-Party 1’s commencement of possession, the prescriptive acquisition was completed around 20 years from April 30, 1984, such as the lower court’s approval. Since it is obvious that the possessor is Non-Party 4 at the time of the completion of the prescription period is the one who acquired the right to claim the transfer registration of ownership against the Plaintiff, who is the one who owns the ownership, is the one who acquired the right to claim
Therefore, the defendant who succeeded from the above non-party 4 prior to the possession of the land in this case can exercise the right to claim the transfer registration of ownership against the plaintiff in order to preserve his right to claim the transfer registration of ownership, and it does not have the right to claim the transfer registration of ownership directly by asserting the effect of the expiration of the prescriptive acquisition by the former occupant (see Supreme Court en banc Decision 93Da4745 delivered on March 28, 1995 and Supreme Court Decision 92Da2965 delivered on December 11, 1992).
Nevertheless, the court below held that the plaintiff is obligated to perform the registration procedure for ownership transfer on the land above (A) part. Thus, the court below erred by misapprehending the legal principles on the completion of prescriptive acquisition, thereby affecting the conclusion of the judgment. The ground for appeal assigning this error is with merit.
3. Therefore, without examining the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices.
Justices Park Jong-chul (Presiding Justice)