However, in cases where a person who acquired ownership after completing a lawful and effective registration of real estate occupies real estate owned by him/her, barring any special circumstance, it is unnecessary to enhance the actual state as a legal relationship, and barring any special circumstance, the nominal owner of real estate is presumed to lawfully hold the ownership of the real estate, and thus, there is no need to remedy the difficulty in proving ownership. Therefore, such possession cannot be deemed as an occupation that serves as the basis for acquisition by prescription. However, only when there is a change in ownership due to transfer of ownership in another person’s name, etc.

1. Regarding ground of appeal No. 1

A. The reason for the existence of the prescriptive acquisition system for real estate is to seek to relieve the possessor’s difficulty in proving the legal relationship in cases where a dispute over the legal relationship arises, taking into account the fact that the state of possession of the real estate concerned continues for a long time, respecting the state of fact, which has a shape of appearance as the right holder, and protecting it by raising it as a true legal relationship, and ensuring stability in legal order by protecting it.

However, in a case where a person who has completed lawful and effective registration of real estate and acquired the ownership of real estate occupies the real estate owned by him/her, barring any special circumstance, it is unnecessary to protect the real estate by raising the actual state as a legal relationship, and there is no need to relieve the difficulty in proving the ownership since the person who owns the real estate is presumed to lawfully hold the ownership of the real estate. Therefore, such possession cannot be deemed as the possession, which forms the basis for acquisition by prescription (see Supreme Court Decision 88Meu26574, Sept. 26, 1989, etc.). However, it is only possible to view that the possession, which is the requirement for acquisition by prescription, commences only when the ownership is

B. The reasoning of the judgment below reveals the following facts.

1) On October 28, 1993, the defendant was issued a provisional attachment order with the Busan District Court 93Kahap4169 on the real estate in this case owned by Jinjin Construction Co., Ltd. (hereinafter “Sinjin Construction”), and the provisional attachment registration was completed on November 2, 1993 as of November 2, 1993.

2) On February 29, 1992, the Plaintiff purchased the instant real estate from Daejin Construction, and acquired its ownership by completing the registration of ownership transfer on November 22, 1993.

3) On May 27, 2014, the Defendant applied for a compulsory auction on the basis of executory exemplification of the Busan District Court Decision 2008Da146130 Decided May 27, 2014, pursuant to the Ulsan District Court Decision 201Ma8839 Decided 2014. Accordingly, on May 28, 2014, the registration of the decision on compulsory auction based on the above provisional attachment was completed.

C. Based on the above factual basis, the lower court rejected the Plaintiff’s assertion on the following grounds: (a) as to the Plaintiff’s assertion that: (b) possession of one’s own real estate cannot be deemed as possession based on the prescription period, on the ground that: (c) possession of the real estate in question cannot be deemed as the basis of the possession of the real estate; (d) possession of the real estate in question peace and openly and openly for twenty (20) years from November 22, 1993, and the prescription period for possession of the real estate was completed; and (e) the provisional attachment of the

D. Examining the above facts in light of the legal principles as seen earlier, the Plaintiff completed the registration of ownership transfer on the instant real estate and acquired its ownership, and thereafter occupied it as the owner. In addition, the Plaintiff’s claim for the acquisition by prescription against the Plaintiff’s possession was merely for the purpose of getting out of the burden of provisional seizure that existed prior to the acquisition of ownership on the instant real estate owned by himself/herself, and it cannot be said that there is a need to protect the status by raising the status as a legal relationship or remedy the difficulty in proving the ownership. Therefore, the Plaintiff’s possession of the instant real estate cannot be deemed as the possession that constitutes the basis for the acquisition by prescription by turning on the possession of the Plaintiff’s real estate. In so doing

The Supreme Court Decision 2001Da17572 Decided July 13, 2001 cited as the grounds of appeal is a so-called contract title trust concerning real estate and the title truster claims the acquisition by prescription against the title trustee while occupying the real estate. It is not a proper precedent that can be invoked in this case.

2. Regarding ground of appeal No. 2

The lower court rejected the Plaintiff’s assertion that the Defendant’s application for compulsory auction against the instant real estate contravenes the principle of good faith.

In light of the relevant legal principles and records, the judgment of the court below is just, and it did not err by misapprehending the legal principles on the principle of good faith or the prohibition of abuse of rights.

3. Conclusion

Therefore, the appeal is dismissed by the assent of all participating Justices, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition.

Justices Kwon Soon-il (Presiding Justice)