[1] Whether extinctive prescription of the right to claim ownership transfer is in progress where a real estate purchaser acquires real estate and continues to possess it by himself/herself (negative)

[2] Whether extinctive prescription of the right to claim ownership transfer registration is in progress in a case where a real estate purchaser acquired a real estate by transfer and obtained profit from the real estate and acquired it to a third party and succeeded to the possession (negative

[1] The prescription system is a system prescribed to maintain social order continuously for a certain period of time and seek relief from the preservation of evidence that is difficult due to the passage of time, and a potential person on the so-called right without exercising his/her right is a system to exclude it from legal protection. A person who exercises his/her right on only one side of the real estate, such as delivery and registration, shall not be deemed as a locked person on his/her right on the real estate as a whole. Thus, where a purchaser continues to possess the real estate after delivery, the extinctive prescription of his/her right to claim the transfer of ownership shall not run

[2] [Majority Opinion] In a case where a purchaser of a real estate takes over the real estate, and disposes of the real estate to another person as part of the exercise of a more active right to the real estate and succeeds to the possession thereof, the extinctive prescription of the right to claim registration of transfer should not run in either of the above two cases or inasmuch as the exercise of the right to claim registration of transfer is limited to the continuous use of and profit from the real estate.

[Dissenting Opinion] While the buyer of a real estate takes over the object of sale and takes advantage of it, the extinctive prescription of the claim for transfer registration of ownership shall not proceed. However, if the buyer loses possession of the object and takes advantage of it no longer, there is no circumstance to deem that the buyer continues to claim or exercise his/her right in relation to the seller, even if the buyer disposes of the real estate to another person and takes it over, the disposition is merely a resale of another person's right, and it cannot be deemed that the buyer disposes of the ownership or exercised his/her right. Further, it is nothing more than that the buyer performs his/her duty under a new sales contract, and it cannot be deemed that the transfer of the object goes out of the status of use and profit in relation to the seller, and therefore, the extinctive prescription of the claim for transfer registration shall run from the point of loss of possession between the parties.

[Supplementary Opinion] Although the claim for ownership transfer registration and the claim for transfer are generally understood as a claim by the buyer of a real estate, the legal nature of the claim is the exercise of a claim based on the buyer's claim to whom ownership is transferred, and the buyer's claim for transfer registration or request for transfer is identical in that the buyer exercises a claim to purchase the real estate. In addition, the buyer's claim for transfer registration or the claim for transfer registration is completed, and possession and use of the real estate after the buyer's delivery does not continue in the exercise of the purchase claim itself, but only maintains the situation of the buyer's exercise of the right. Thus, it is necessary to distinguish the situation of the buyer's exercise of the right from the application of the prescription, which is a case where the buyer's exercise of the right is a case, regardless of whether the buyer occupies or uses the

[1] Articles 162(1) and 568 of the Civil Act / [2] Articles 162(1) and 568 of the Civil Act

[1] Supreme Court en banc Decision 76Da148 delivered on November 6, 197 (Gong1976, 9492) 80Da1986 delivered on November 25, 198 (Gong1981, 13453 delivered on October 13, 1987), 87Da1093 delivered on September 13, 197 (Gong1987, 1988, 197) 86Da2908 delivered on September 13, 197 (Gong198, 12729, 197, 197) 29Da29798 delivered on December 7, 190 (Gong1991, 441 delivered on December 27, 1997).

Plaintiff

Defendant (Co-Defendant 1 of the first instance trial)

Daejeon District Court Decision 97Na8425 delivered on May 29, 1998

The judgment of the court below is reversed and the case is remanded to Daejeon District Court Panel Division.

The plaintiff's grounds of appeal are examined.

1. According to the reasoning of the judgment below, the court below rejected the plaintiff's defense that the defendant, on March 11, 1970, sold and delivered shares of 1/17 of the forest land stated in the purport of the judgment below (hereinafter "the forest land of this case") to the deceased non-party, and that on December 29, 1971, the plaintiff sold and delivered the forest of this case to the plaintiff. Accordingly, the defendant, as to the forest of this case, the co-defendant 2 of the court of first instance, et al. of the above deceased, were liable for the above sale on March 11, 1970, and the above non-indicted 9, including the co-defendant 2, et al. of the court of first instance, were liable for the above transfer registration to the plaintiff on December 29, 1971, considering that the plaintiff's right to claim the transfer registration of the ownership of the above deceased was extinguished by the expiration of the prescription period from 197 years to the plaintiff's right to claim the ownership transfer registration.

2. However, the prescription system seeks to maintain social order continuously for a certain period of time and to provide relief from the preservation of evidence difficult due to the passage of time, and the locked person on the so-called right without exercising his/her right is a system established to exclude it from legal protection. Even if one party such as delivery and registration with respect to real estate, a person who exercises his/her right can not be viewed as a locked person on the right to such real estate as a whole. If a purchaser continues to possess the real estate upon delivery, the extinctive prescription of the right to claim the transfer of ownership is not run as a part of the established precedents of the party members (see, e.g., Supreme Court en banc Decision 76Da148, Nov. 6, 197; 86Da2908, Sept. 13, 198; 97Da19797, Dec. 7, 1997; 200Da19697, Feb. 16, 207).

3. Ultimately, the court below's rejection of the plaintiff's claim of this case on the ground that the above deceased's right to claim for the transfer of ownership was extinguished by prescription, which affected the conclusion of the judgment due to the misapprehension of legal principles as to the extinctive prescription. The ground of appeal assigning this error is with merit.

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices on the bench, except for Lee Don-hee, Kim Jong-hee, Shin Sung-sung, Song Jin-hun, and Cho Cho

Justices Lee In-hee, Kim Jong-hee, Lee Sung-sik, Lee Jin-hun, Cho Jin-hun, and Cho Jong-hun are as follows.

1. The majority opinion states that as long as a purchaser of a real estate takes over the real estate, if he disposes of the real estate to another person as part of the exercise of more active rights to the real estate and succeeded to the possession thereof, the exercise of the right to claim the registration of transfer does not particularly differ from the case where he continues to use and make profits from the real estate on his own. Thus, the extinctive prescription of the right to claim the registration of transfer does not run equally in any of the above two cases, and that the extinctive prescription of the right to claim the registration of transfer does not run likewise in any of the above two cases. Accordingly, the Supreme Court Decisions 96Da68 delivered on September 20, 1996, 96Da53826 delivered on July 8, 197, 95Da17298 delivered on July 22, 1997 should be amended.

However, the Majority Opinion’s opinion can only be seen as derived from misunderstanding the legal principles on the right to claim ownership transfer registration and the extinctive prescription, which are based on a juristic act, and therefore, we cannot agree with the Majority Opinion.

In other words, while the purchaser of real estate takes over the object to use it and gains profit therefrom, the extinctive prescription of the right to claim for transfer registration of ownership shall not proceed. However, if the purchaser loses the possession of the object and uses it and gains profit therefrom any longer, it is reasonable to view that the extinctive prescription of the right to claim transfer registration will run from the time of the loss of possession as to what is the cause of the loss

2. The arguments are as follows:

A. Under the Speaker's Civil Code, the buyer of the real estate, who has withdrawn the principle of intention, acquired the ownership of the real estate only by the contract of sale and the registration of transfer is merely a requisite for setting up against the buyer, so even if the buyer loses possession of the transferred real estate, he could be interpreted as having the right to claim for registration based on the ownership. However, under the current Civil Code, which takes the principle of formality, the buyer of the real estate can acquire the ownership only if he/she has completed the registration of transfer due to a juristic act. As such, the right to claim for registration is bound to be a claim based on the contract of sale and purchase regardless of whether the real estate is transferred, and there is no room

Therefore, although the buyer's right to claim for registration of real estate should take place as in the general claim, if the buyer of the real estate uses or benefits from the real estate after being delivered the object of the sale, the reason for the existence of the prescription system should respect the fact-finding situation and not protect the potential person above the right, and in particular, in light of the fact that the buyer's use or benefit from the sale of the object is based on the seller's fulfillment of the seller's obligation under the sales contract, it cannot be viewed as a locked person on the right. Therefore, while the buyer's possession or use of the object of the sale continues, there is room to interpret that the extinctive prescription of the right to claim for registration of transfer should not proceed.

However, if the buyer loses the possession of an object and uses and gains profit from it, there is no reason to view that the claim or exercise of the right is continuing in relation to the seller, and even if the buyer disposes of and delivers the real estate to another person, such disposition is merely merely a resale of another person's right, and it cannot be deemed that the buyer disposes of or exercises the ownership, and its delivery is nothing more than the buyer's performance of his/her duty under a new sales contract, and rather, it cannot be viewed as an exercise of the right in relation to the seller who uses and gains profit from the above disposition or delivery, and therefore, it cannot be viewed as an exercise of the right in relation to the seller who uses and acquires the object. Therefore, it is reasonable to view that the extinctive prescription of the claim for transfer registration begins from the time of the loss of possession, regardless of what the cause of

B. According to the Majority Opinion, the following problems conflict with the fundamental purport of the extinctive prescription system and the registration system will be followed.

(1) As such, the Majority Opinion, for the reason of such interpretation, states that a person who exercises a right against only one party, such as registration and delivery, cannot be deemed as a locked person on the real estate as a whole, and that even if a purchaser disposes of the real estate used and profited by him/her to another person as part of the exercise of a more active right, and even if he/she succeeded to the possession of the real estate, he/she does not have any special difference as to whether he/she has exercised the right to request registration of transfer.

However, in light of the fact that an objective right has arisen and its right is exercised, and that a right holder is not a locked person on his/her right, such as exercising his/her right, the interruption of prescription becomes the cause for interruption of prescription, and that there is a new exercise of the right from the time when such cause ceases to exist, in order to prevent the progress of prescription or to the extent that the exercise of the right cannot be regarded as an object of prescription, at least the situation where the right is exercised in relation to the debtor. However, the disposal of the transferred real estate to a third party and the transfer of possession thereof is merely the performance of the obligation pursuant to the sales contract with the third party, and it cannot be deemed that the buyer exercised the right against the seller irrelevant to the contract. The Majority Opinion is inconsistent with the Majority Opinion’s view that the seller’s exercise of the right against the seller is difficult even if it is deemed that the right is exercised by way of the concession of domestic affairs.

(2) In addition, the Majority Opinion’s interpretation that the extinctive prescription of the right to claim registration of transfer does not run as in the case where the buyer continues to use and benefit from the real estate, despite the lack of theoretical basis as above, is presumed to be the premise that the real necessity to protect the final buyer is strong rather than the seller.

In the early stage of the enforcement of the current Civil Code, since the influence of the current Civil Code, which had the intention of withdrawal, is remaining and the buyer has a tendency to neglect the registration of transfer by recognizing that the buyer has acquired the right of registration and the ownership of the real estate from the seller, so there has been a strong need to exclude the buyer's right to request the registration from the subject of extinctive prescription because it is different from other claims, and the party member, through the above en banc Decision, tried to harmonize the above practical request and the reason for the existence of the extinctive prescription system by interpreting that the buyer does not go against the extinctive prescription period.However, today's real estate transaction, the current Civil Code, which takes the form principle, does not complete the registration of transfer after the lapse of ten (10) years from the time of resale, has been implemented, various special laws, which make it possible to make the registration consistent with the substantive legal relationship in a simplified way, and recently, the real estate registration system which enforces this, has been implemented, and there has been no need to protect the person prior to the purchase of the real estate.

In addition, in light of the fact that the current Civil Code adopts the form principle and promotes the registration of real estate in accordance with the substantive relations, and furthermore, the acquisition of real estate rights by law does not require the registration, but it is not required to dispose of the real estate without the registration, thereby promoting the safety of transaction by accurately reflecting the process of change in real rights, the fact that the real estate purchaser's right to claim for registration does not still become subject to extinctive prescription even though it was disposed of without the acquisition of ownership by failing to make the registration of transfer, is inconsistent with the structure of the current Civil Code and the ideology of the real estate registration system, which take the form principle by significantly weakening the public disclosure function of the registration.

C. The Majority Opinion cannot be concerned as to whether the right to claim the transfer registration of a person who lost possession of real estate can be harmonized with the previous position of a party member as to whether the right to claim the transfer registration takes effect by extinctive prescription.

In a case where: (a) a party member acquired the right to claim the transfer of ownership against the owner at the time of expiration of the period of acquisition by prescription; (b) the current possessor who succeeded to the possession from the possessor at the time of completion of acquisition by prescription can exercise the right to claim the transfer of ownership against the former possessor; and (c) there is no right to claim the transfer of ownership on his own as a result of completion of acquisition by prescription (see Supreme Court en banc Decision 93Da4745 delivered on March 28, 1995); and (d) a person who acquired by prescription transfers the real estate and succeeds to the possession of the real estate, the right to claim the transfer of ownership on the ground of the completion of the period of acquisition by prescription is an obligatory claim; (c) a possessor who continues the possession of the real estate, but is not exercised for ten (10) years from the time of loss of such possession (see, e.g., Supreme Court Decisions 95Da24241 delivered on December 5, 1995; 95Da3466,3873, Mar. 8, 1996).

However, as stated in the majority opinion, if it is recognized that the disposal of real estate and the succession thereto are part of the exercise of rights more actively than the possession and use of real estate and in such a case, the extinctive prescription of the right to claim registration of transfer does not proceed, if the possessor at the time of the completion of the prescriptive acquisition disposes of the real estate and transfers the possession thereof, the right to claim registration of transfer against the owner shall not be subject to the extinctive prescription. Accordingly, the above precedents should have taken into account these unreasonable results carefully, as they are not only in conflict with the majority opinion but also inconsistent with equity.

3. For the above reasons, we cannot agree with the majority opinion, and we cannot agree with the majority opinion on September 20, 196 that the majority opinion should be changed, 96Da6866 delivered on July 8, 1997, 96Da53826 delivered on July 22, 1997, and 95Da17298 delivered on July 22, 1997, as seen above, the system of the Civil Act of the Republic of Korea as to real right changes in real rights has changed from the principle of intention to a form, and it is reasonable to maintain the system as it reflects the actual situation of real estate registration and the recent reality where legal consciousness on it has changed. Rather, we cannot agree with the majority opinion on March 23, 197, 76Da1736 delivered on March 8, 197, and the majority opinion did not dissent with the current system of the Civil Act as well as the opinion on the withdrawal of its opinion and its remaining theory.

The supplementary opinion to the Majority Opinion by Justice Park Jong-chul is as follows.

1. The buyer of a real estate exercises the right to claim the transfer of ownership and the right to claim the transfer of ownership against the seller. The above claim for the transfer of ownership and the right to claim the transfer of ownership are generally understood as a claim, but its legal nature is the exercise of the contractual right based on the buyer's claim to whom ownership is transferred. Therefore, it is the same in that the buyer claims the transfer of ownership or requests the transfer

In addition, the buyer's exercise of the right to claim delivery is completed once it is delivered by the buyer, and thereafter possession and use is not continued in the exercise of the right to claim purchase, but is only maintained in the state of the result of the exercise of the right. As such, regardless of whether the buyer himself/herself possesses or uses the object, or by transferring it to a third party, it is unnecessary to distinguish the situation according to the buyer's exercise of the right to claim delivery from the application of the prescription, which is the situation where the buyer's exercise of the right is a case. Furthermore, there are no other points such as the buyer's exercise of the right to claim

If the buyer does not exercise the right to claim the transfer registration for ten years, the right to claim the transfer registration expires and the right to claim the transfer registration is generally expressed, but accurate analysis is not a claim but a claim based on the claim, so it is impossible to claim the transfer registration due to the extinction of the buyer's claim due to the sale.

Therefore, as argued by the Dissenting Opinion, if (B) the right to claim for the transfer registration of ownership against (B) becomes extinct due to the lapse of the prescription of the claim of (B) due to the sale of (A) on the part of (a) where (a) the right to claim for transfer registration of ownership is extinguished, and (b) the sale is denied and the claim for transfer is filed against (B) on the basis of ownership, even if (a) intends to refuse the claim of (b) on the ground that (b) the right to claim for transfer is in the position to claim for delivery as the buyer on behalf of (B), the right to claim of (B) on behalf of (B) shall be extinguished, and thus, shall not be denied.

Although the Supreme Court en banc Decision on November 6, 1976 omitted a detailed logical explanation, it is already pointed out that the buyer has caused unreasonable consequences to recover the object from the seller when recognizing the extinction of the prescription of the right to claim the transfer registration in the above case.

2. The above en banc decision is that the buyer of the real estate takes over the object and takes profits from it, but it refers to the general legal principle declared in a specific case. Accordingly, if the purchaser of the real estate takes over the object, it is reasonable to interpret that the buyer's right to claim for registration is not subject to extinctive prescription, unlike other claims. Therefore, in applying the above en banc decision, it cannot be interpreted that the buyer needs to continue possession after taking over the object.

Of course, the above en banc decision is one of the grounds for adopting the above legal principles, and where the purchaser of real estate takes over the object and uses or gains profit from it, the purchaser shall not be deemed a locked person on his/her right in light of the reason for existence of the above prescription system. However, this does not purport to discriminate against the purchaser at the time of transfer of possession by taking over the object and disposing of it by the purchaser. The above en banc decision should pay attention to the fact that the purchaser of real estate takes over the object without the explanation of "where the purchaser takes over the object and occupies the object, it shall not be deemed a locked person on his/her right."

Therefore, as long as the above en banc decision is maintained, the opinion of the majority opinion should be changed.

1. Where a person is aware of the fact that he/she is aware of the fact that he/she is aware of the fact that he/she is aware of the fact that he/she is aware of the fact that he/she is aware of the fact that he/she is aware of the fact that he/she is aware of