Whether extinctive prescription of the right to claim ownership transfer registration due to completion of prescription is in progress where the possessor whose acquisition by prescription has expired loses possession (affirmative)

The right to claim for ownership transfer registration following the completion of prescription does not expire as long as possession of the land continues, and even if possession was lost thereafter, unless it can be seen as waiver of prescription interest, the right to claim for ownership transfer registration already acquired shall not be immediately extinguished. However, if the possessor whose prescription has been completed loses possession, the extinctive prescription of the right to claim ownership transfer registration due to the completion of prescription is a separate issue, and if the possessor loses possession for ten years from the time he/she loses possession, the extinctive prescription shall expire.

Articles 162(1) and 245(1) of the Civil Act

Supreme Court en banc Decision 93Da4745 delivered on March 28, 1995 (Gong1995Sang, 1609) Supreme Court Decision 95Da24241 delivered on December 5, 1995 (Gong1996Sang, 202) Supreme Court Decision 94Da39628 delivered on December 8, 1995 (Gong196Sang, 329)

Plaintiff (Counterclaim Defendant) (Attorney Choi Young-young et al., Counsel for the plaintiff-appellant)

Defendant-Counterclaim (Attorney Park Il-hwan, Counsel for defendant-Counterclaim)

Supreme Court Decision 92Da29665, 29672 Delivered on December 11, 1992

Jeonju District Court Decision 93Na435, 442 delivered on June 30, 1995

The part of the lower judgment against the Plaintiff (Counterclaim Defendant) shall be reversed, and that part of the case shall be remanded to the Panel Division of the Jeonju District Court.

The grounds of appeal and the supplemental appellate brief submitted after the lapse of the period are examined as well.

1. Based on the evidence of employment, the lower court determined that: (a) the deceased non-party 1 commenced possession of the part of the instant land owned by the Plaintiff (the counter-party; hereinafter the same shall apply); (b) died on February 18, 1949; (c) he succeeded to possession by Non-party 2, who is his heir and property heir thereafter; and (d) the defendant (the non-party 2) purchased the part of the instant land from the above non-party 2 on April 8, 197, and was occupied and used until now; and (e) it is presumed that the possession of each of the above occupants was made in peace and public performance; (b) it was dismissed by the above non-party 1’s dismissal of the prescriptive prescription as of December 31, 195, which was the occupant at the time of the above non-party 1’s commencement of possession; and (b) the Plaintiff’s claim to remove the prescriptive prescription as of December 31, 1955, which was extinguished due to the expiration of the prescriptive prescription period from 197.

2. Examining the relevant evidence and the record, the court below's fact-finding and determination as to the sale and purchase of the land portion of this case, as pointed out by the theory of lawsuit, and the relation of possession and the nature of the possessor's possession, etc. are considered to be correct. In so doing, it did not err by misapprehending the legal principles as to the possession of land independently or by failing to exhaust all deliberations as to the theory of lawsuit.

There is no reason to discuss this issue.

3. The right to claim for ownership transfer registration following the completion of the acquisition by prescription does not expire as long as the possession of the land continues, and even if the possession was lost thereafter, the right to claim for ownership transfer registration is not immediately extinguished unless it can be viewed as waiver of the acquisition by prescription interest. However, the extinctive prescription of the right to claim ownership transfer registration due to the completion of the acquisition by prescription is a separate issue. In such a case, the possessor shall be deemed to have completed the extinctive prescription if he fails to exercise the right to claim for ownership transfer registration for ten years from the time he loses possession of the real estate (see, e.g., Supreme Court en banc Decision 93Da4745, Mar. 28, 1995; Supreme Court Decision 95Da24241, Dec. 5, 1995).

Therefore, the court below's rejection of the claim of extinctive prescription based on the determination that the extinctive prescription of the right to claim ownership transfer registration due to the completion of the prescriptive prescription does not run as to the right to claim ownership transfer registration due to the completion of the prescriptive prescription is erroneous in the misapprehension of legal principles as to the extinctive prescription of the right to claim ownership transfer registration due to the completion of the prescriptive prescription, and the grounds for appeal on this point are with merit.

4. Therefore, the part against the Plaintiff among the judgment below on the principal lawsuit and counterclaim cannot be reversed, separate from the propriety of the claim for ownership transfer registration on May 17, 1989, which was based on the completion of the prescriptive acquisition on the part cited by the court below among the Defendant’s conjunctive claim and the selective claim as cited by the court below.

Therefore, the part of the judgment below against the plaintiff is reversed, and that part of the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Ahn Yong-sik (Presiding Justice)