Whether extinctive prescription of the right to claim ownership transfer registration is in progress where the buyer loses possession while using or making profits from the real estate in delivery (affirmative)

Where the purchaser of a real estate uses or gains profits from the real estate after being delivered the object, the buyer's right to claim the transfer registration shall not be subject to the extinctive prescription, but if the purchaser loses the possession of the object and uses or gains profits from it, the extinctive prescription on the buyer's right to claim the transfer registration shall run from the time of the loss of possession

Articles 162, 166, and 568 of the Civil Act

Supreme Court Decision 86Meu2908 delivered on September 13, 198 (Gong1988, 1272) Supreme Court Decision 90Da9797 delivered on March 22, 1991 (Gong1991, 1244) Supreme Court Decision 91Da40924 Delivered on July 24, 1992 (Gong192, 2523)

Plaintiff (Appointed Party)

Republic of Korea (Attorney Kim Jong-soo, Counsel for defendant-appellant)

Daejeon District Court Decision 95Na5781 delivered on December 1, 1995

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

As to the Grounds of Appeal

1. According to the reasoning of the judgment below, the court below rejected the defendant's assertion that the non-party 1's right to claim for ownership transfer registration of the real estate of this case against the non-party 1 was extinguished by prescription, since the defendant sold the real estate of this case to the non-party 1 on February 7, 1953 and sold it twice to the non-party 2 on August 22, 1987, and the non-party 2 completed the ownership transfer registration in the future on August 25, 1987. Since the defendant's duty to claim ownership transfer registration against the non-party 1 to the non-party 1 was impossible to perform unless there are special circumstances, the non-party 1 purchased the real estate of this case from the defendant and purchased it again to the non-party 3 on August 20, 198, and the non-party 1 purchased the real estate of this case from the deceased non-party 3 on the ground that the right to claim ownership transfer registration of this case was not transferred to the non-party 1.

2. However, if the purchaser of the real estate uses or gains profits from the real estate in delivery, the buyer's right to claim the transfer registration does not take place within the extinctive prescription, but if the purchaser loses possession of the object and uses or gains profits from it, the buyer's right to claim the transfer registration from the time of the loss of possession (see Supreme Court Decision 91Da40924 delivered on July 24, 1992). Thus, the court below recognized that the non-party 1 lost possession by delivering the real estate to the non-party 3 on March 20, 1960, and rejected the defendant's claim on the ground that the extinctive prescription does not run, but it erred by misapprehending the legal principles as to the extinctive prescription, thereby affecting the conclusion of the judgment. Therefore, there is a reason to point this out.

3. The judgment of the court below is reversed without examining the remaining grounds of appeal, and 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.

Justices Park Jong-chul (Presiding Justice)