[1] Whether registration under “a person who has registered as an owner of real estate”, which is a requirement for the acquisition by prescription of registry, should be a lawful and effective registration (negative)

[2] In a case where one of the co-owners has occupied only a specific part of the land on one parcel, the scope of the completion of the prescription period for acquisition of the register (=within the scope of co-ownership share on a specific portion) and whether the same applies to the case where the land on one of the co-owners was in the sectionally

[1] Article 245 (2) of the Civil Code / [2] Article 245 (2) of the Civil Code

[1] Supreme Court Decision 93Da2367 delivered on February 8, 1994 (Gong1994Sang, 1003) Supreme Court Decision 96Da48527 delivered on January 20, 1998 (Gong1998Sang, 557) / [2] Supreme Court Decision 86Da280 delivered on May 27, 198 (Gong1986, 815), Supreme Court Decision 93Da4250 delivered on August 27, 1993 (Gong193Ha, 2616)

Plaintiff (Law Firm Self- Training, Attorneys Lee Sung-sung et al., Counsel for the plaintiff-appellant)

Republic of Korea (Government Law Firm Corporation, Attorneys Park Si-si et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2012Na105484 decided October 11, 2013

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

Examining the reasoning of the judgment below in light of the relevant legal principles and records, it is just that the court below recognized that co-owners of the land of this case, including the non-party, have a sectionally owned co-ownership relationship. There is no error in the misapprehension of legal principles as to sectionally owned co-ownership relationship, violation of the rules of evidence,

2. Regarding ground of appeal No. 2

The registration under Article 245(2) of the Civil Act refers to a person who has registered as a real estate owner, which is a requirement for the acquisition by prescription under Article 245(2) of the Civil Act, as stated in the “person who has registered as a real estate owner,” is not required to be a lawful and effective registration date, and is not related to the registration of invalidation (see, e.g., Supreme Court Decisions 93Da23367, Feb. 8, 1994; 96Da48527,

Examining the reasoning of the judgment below in light of the aforementioned legal principles and records, the court below is just in holding that the acquisition by prescription of the registry can be recognized on the ground that the registration of the land of this case ( Address omitted) is not contrary to the first real estate principle stipulated under Article 15 of the Registration of Real Estate Act, even if the aggregate share in the ( Address omitted) land of this case exceeds 1 and the registration of co-ownership transfer in the name of the non-party is null and void, on the grounds as stated in its reasoning. There is no error

3. As to the third ground for appeal

If one of the co-owners has occupied only a specific part of a parcel of land, it does not meet the requirement of possession of the real estate as to the remaining part except the specific part among the requirements for the prescription for acquisition of the registry, which states that the person who has registered as the owner of the real estate" and the one who has possessed the real estate, "when possession of that parcel of land", and the registration of co-ownership with respect to the land owned by the possessor of the specific part cannot be deemed to be the registration indicating the specific part itself. Thus, the prescription for acquisition of the registry shall be deemed to have expired only within the extent of co-ownership as to the specific part (see, e.g., Supreme Court Decisions 86Da280, May 27, 1986; 93Da4250, Aug. 27, 1993). Since the original part of the land is to specify the location and area of the land inside and to be registered as the sectional ownership of the land as co-ownership, it cannot be viewed differently because it is the land registered as the sectional ownership.

According to the reasoning of the lower judgment and the record, co-owners of the instant land were in a sectionally owned co-ownership relationship. However, the Nonparty purchased shares of 13.25/7,485 out of the instant land (location omitted) and completed the registration of co-ownership transfer on May 21, 1975, and possessed approximately 21.02/25/7,485 of the entire size of the instant land (hereinafter “specific portion”) for at least ten years.

In light of the above legal principles, the non-party only met the requirements for the acquisition of the period of prescription only within the limit of 13.25/7,485/7,00 of the specific portion, and it does not meet the requirements for the acquisition of the period of prescription for the shares or specific portion of shares in 13.25/7,485 of the entire land of this case ( Address omitted).

Nevertheless, for reasons indicated in its reasoning, the lower court determined that the Nonparty acquired ownership by satisfying the requirements for the acquisition of the statute of limitations on the entire shares of 13.25 percent of the land in the instant case ( Address omitted). In so doing, the lower court erred by misapprehending the legal doctrine on the scope of the completion of the statute of limitations on the acquisition of the register based on the registration of co-ownership share, thereby adversely affecting the conclusion of the judgment. The allegation contained

4. As to the fourth ground for appeal

Examining the reasoning of the judgment below in light of the relevant legal principles and records, it is reasonable that the court below determined that the plaintiff did not waive the benefit of the completion of the prescription period for the acquisition of the registry on the grounds as stated in its reasoning, and there is no error of law such as misunderstanding of legal principles as to the waiver of the prescription benefit

5. Conclusion

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jo Hee-de (Presiding Justice)