[2] Whether a purchaser who has not examined whether the right to dispose of real estate has been negligent in the possession of real estate (affirmative), and where there are circumstances to suspect the seller’s right to dispose of real estate due to the entry in the registry or other circumstances, or where in light of the seller’s relationship and the buyer’s relationship, it appears that the buyer would have easily known the absence of the right to dispose of real estate if he/she investigated whether the seller had the right to dispose of the real estate, barring any special circumstances, whether there is negligence

[2] A person who purchases real estate shall investigate whether the seller has the right to dispose of the real estate, and if he/she purchased the real estate without such investigation even though he/she could have known that the seller had no right to dispose of the real estate, it should be deemed that there was negligence in the possession of the real estate. In cases where the seller is the same as the buyer on the registry, it would not be deemed that there was any negligence on the part of the purchaser who believed that the entry in the registry is valid. However, in cases where there are circumstances to suspect the seller’s right to dispose of the real estate due to entry in the registry or other circumstances, or where it would be easily known that the buyer could not have the right to dispose of the real estate if he/she had investigated whether the seller had the right to dispose of the real estate in light of the relationship between the seller and the buyer,

1. A. In order to recognize the period of prescription for acquisition of a registry, there is no negligence in the commencement of possession. The burden of proof as to negligence lies in a person who asserts the acquisition of prescription (see, e.g., Supreme Court Decisions 2004Da13052, Jun. 25, 2004; 2005Da12704, Jun. 23, 2005; 2016Da220679, Aug. 24, 2016).

B. A purchaser of a real estate must investigate whether the seller has the authority to dispose of the real estate. Thus, if the purchaser purchased the real estate without such investigation even though he could have known that the seller had no authority to dispose of the real estate, it should be deemed that there was negligence in the possession of the real estate. In a case where the seller is the same person as the buyer on the registry, it would not be deemed that there was any negligence on the part of the purchaser who believed that the entry in the registry would be effective. However, in a case where there are circumstances to suspect the seller’s authority to dispose of the real estate due to entry in the registry or any other circumstances, or where it would be easily known that the buyer could not have the authority to dispose of the real estate if the buyer had investigated whether the seller had the authority to dispose of the real estate in light of the seller’s relationship with the buyer, it cannot be said that there was no negligence on the part of the buyer’s belief and purchased the real estate in the name of the seller (see, e.g., Supreme Court Decisions 91Da38266, Jun. 23, 1992>

2. A. According to the reasoning of the lower judgment, the lower court acknowledged the following facts. ① As to each of the instant real estate owned by the deceased Nonparty 1 (hereinafter “the deceased”), the ownership transfer registration based on Nonparty 2’s name on January 6, 1992 (the deceased died on the same day) was completed on December 28, 191 (hereinafter “the first ownership transfer registration”), and the ownership transfer registration based on “sale on April 1, 2003” (hereinafter “the second ownership transfer registration”) was completed in the Defendant’s name on April 4, 2003. ② The Defendant cultivated each of the instant real estate with the deceased prior to the death of the deceased, and continued to possess each of the instant real estate from January 6, 1992 due to the completion of the first ownership transfer registration.

B. Furthermore, the lower court determined as follows based on the above findings of recognition.

(1) The instant registration of transfer of ownership No. 1 was made after the owner’s death, and barring any special circumstance, is null and void, and the instant registration of transfer of ownership No. 2, which was completed based thereon, is also null and void.

(2) However, the Defendant ought to be deemed to have occupied each of the instant real estate without any negligence in good faith and in good faith with intent to hold it owned from April 4, 2003, which completed the registration of transfer of the second ownership in his name. Therefore, since the acquisition by prescription of the registry under Article 245(2) of the Civil Act was completed on April 4, 2013 with respect to each of the instant real estate on which ten years have passed since the acquisition by prescription under Article 245(2) of the Civil Act was completed, the registration corresponding to the substantive relationship is valid.

3. However, according to the records, including the evidence duly admitted by the court below, the following facts and circumstances are revealed.

A. The Plaintiffs are married to the deceased, and the Defendant is the head of the deceased’s body. Nonparty 2 is in the relationship of marriage between the Defendant and the fourth degree (the Defendant’s wife is Nonparty 2 and the second degree of marriage). Nonparty 2 differs from the deceased for at least 40 years, and the deceased’s children are similar to the deceased’s children.

B. On January 6, 1992, the deceased died on or around 03:00, each of the instant real estate was co-ownership of co-inheritors, including the Defendant. On the same day, the registration of the first ownership transfer was completed to Nonparty 2, not co-inheritors of the deceased. The grounds for the registration of the first ownership transfer are stated as “sale on December 28, 1991,” and there is no evidence to deem that such a sales contract was concluded between the deceased and Nonparty 2. There is no evidence to deem that the deceased assumed the obligation to Nonparty 2 before his birth, or that the first ownership transfer registration of this case was completed as the repayment of such obligation.

C. The Defendant’s residence and Nonparty 2’s residence are both located in “Jin-si (road name omitted),” and their residence are adjacent to a distance of less than 1 km, and mutual visits frequently occurred.

D. The Defendant cultivated each of the instant real estate since the deceased’s survival, and even after Nonparty 2 completed the registration of transfer of the first ownership of this case, the Defendant cultivated each of the instant real estate as before, but did not pay rent to Nonparty 2. In addition, even though the grounds for registration of transfer of the second ownership of this case stated as “sale on April 1, 2003,” there is no evidence to deem that the Defendant paid the purchase price to Nonparty 2.

4. Examining these facts and circumstances in light of the legal principles as seen earlier, even if the Defendant trusted the registration of transfer of ownership of this case No. 1 in the name of Nonparty 2 and purchased each of the instant real estate, that alone does not constitute possession without negligence by the Defendant. The reasons are as follows: ① According to the above circumstances, it may be deemed that the Defendant had any circumstance to suspect Nonparty 2’s right to dispose of the instant real estate; ② in light of the relationship between Nonparty 2 and the Defendant and the status of residence, etc., the Defendant could have easily known the fact that Nonparty 2 did not have the right to dispose of the instant real estate, unless there were any special circumstances.

5. Nevertheless, the lower court determined otherwise based on its stated reasoning that the Defendant’s possession of each of the instant real estate was the possession without fault. In so determining, the lower court erred by misapprehending the legal doctrine on possession without fault, which is a requirement for the acquisition by prescription of registry, thereby adversely affecting the conclusion of the judgment. The allegation contained in

6. Meanwhile, since the registration of transfer of ownership of this case was completed in the name of the deceased’s co-inheritors and one of the co-owners of each real estate of this case, the co-inheritors’s share in co-ownership of the defendant is valid as a registration consistent with the substantive relationship. Therefore, the plaintiffs, who are other co-owners, can seek implementation of the procedure for the registration of cancellation of ownership transfer of this case only with respect to all remaining co-ownership except the defendant’s co-ownership (see, e.g., Supreme Court Decisions 2006Da32200, Aug. 24, 2006; 2012Da2408, Apr. 9, 2015). However, even after examining records, there is no evidence to clearly specify the scope of co-inheritors’s existence at the time of the deceased’s death, and therefore, the inheritance shares of the defendant among each real estate of this case cannot be accurately specified. Therefore, the lower court’s error of misapprehending the relevant legal doctrine has affected all claims against the defendant.

7. Therefore, without examining the remaining grounds of appeal, the part against the defendant among the judgment below is reversed, and this part of 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 on the bench.

Justices Kim Yong-deok (Presiding Justice)