A. Whether the original judgment, which was the subject of a retrial in a case of retrial, constitutes a "original trial" under Article 37 subparagraph 5 of the Civil Procedure Act

B. Whether the title holder of the said site may claim the transfer of the site against the possessor of the site, the prescriptive acquisition of which has been completed (negative)

A. For the purpose of Article 37 subparagraph 5 of the Civil Procedure Act which provides for the grounds for exclusion of a judge, the term "pre-trial" refers to a lower court's judgment on the appeal case, and it prevents a judge in charge of a lower court's trial on the appeal appeal case from participating again in the lower court's judgment on the ground that the appeal case's appeal is unjustifiable, even though the lower court's appeal was dismissed, it does not constitute "pre-trial judgment", and it cannot be said that a judge who participated in the original judgment does not constitute grounds for exclusion by participating again in the trial on the appeal case.

B. If Eul occupied part of the site Gap's possession in peace and openly for twenty (20) years, Eul may request Eul to implement the procedure for transfer of ownership. Since Eul is obligated to comply with this request, Eul cannot request Eul to remove the building and deliver its site on the ground that it is illegal possession of the site.

A. Article 37 subparag. 5 of the Civil Procedure Act; Article 245(1) of the Civil Act

A. Supreme Court Decision 71Da27 delivered on May 11, 1971, 79Da777 delivered on November 27, 1979, 86Nu631 delivered on December 23, 1986. Supreme Court Decision 66Da1125 delivered on September 20, 196, 74Da2169 delivered on September 23, 1975

Attorney Shin Jin-chul, Counsel for the plaintiff-appellant

Attorney Kim Young-hoon, Counsel for the defendant-appellant in charge

Daejeon District Court Decision 85No3 delivered on July 1, 1987

The appeal is dismissed.

The costs of appeal shall be assessed against the plaintiff (Counterclaim defendant, retrial defendant).

As to the ground of appeal by the Plaintiff (Counterclaim Defendant, Defendant for Review)

1. For the purpose of Article 37 subparagraph 5 of the Civil Procedure Act which provides for the grounds for exclusion of a judge, the term "pre-trial" refers to the lower court's judgment in the appeal case, and it prevents a judge who had been involved in the appellate court's trial which makes an appeal for dissatisfaction with unjustifiable dismissal of the lower court's judgment from participating again in the appeal case. Thus, the original judgment in the appeal case is not a "pre-trial judgment", and it does not constitute a ground for exclusion by a judge who has participated in the original judgment again (see Supreme Court Decision 71No27 delivered on May 11, 1971; 79No7 delivered on November 27, 1979; 86Nu631 delivered on December 23, 1986). It is unreasonable to discuss the above legal principles.

2. If the Defendant occupied part of the land owned by the Plaintiff in peace and openly for twenty (20) years with his intention to own it, the Defendant may request the Plaintiff to implement the procedure for the registration of ownership transfer, and the Plaintiff is obligated to comply therewith, and the Plaintiff cannot request the Defendant to remove the above ground building and transfer the site on the ground that the Plaintiff did not complete the registration of ownership transfer on the above site (see Supreme Court Decision 66Da1125 delivered on September 20, 196; Supreme Court Decision 74Da2169 delivered on September 23, 1975).

In theory, even if the Defendant acquired a part of the land owned by the Plaintiff by prescription, insofar as the Plaintiff did not complete the registration of ownership transfer, the Defendant’s defense of prescriptive acquisition cannot be accepted even if there was no perjury by the Nonparty on the premise that he had a duty to comply with the Plaintiff’s removal and request for extradition. Therefore, the Nonparty’s perjury, which was finally convicted, did not affect the outcome of the judgment subject to a retrial. However, such assertion does not go against the legal principles as seen earlier in its premise, and

3. According to the reasoning of the judgment below, the court below acknowledged the following facts: when the non-party, who is the non-party's property belonging to the non-party, came to a non-party's 1 to 654 square meters from the Dog-ri 315-ri, Chungcheongnam-gu, Chungcheongnam-do, Chungcheongnam-do, the non-party's property, was the non-party's property, and the ownership was acquired by fully paying the price by including the 59 square meters from the part of the site of this case he was in possession and use, which was the 59 square meters from the non-party's 1 to 609 square meters from the non-party's 315-1 to 609 square meters from the non-party's 315-1 to the non-party's 315-609 square meters from the non-party's purchase and use of the site of this case, including the part of this case's 59 square meters from the non-party's purchase.

The above fact-finding by the court below is just and there is no error in the rules of evidence, the incomplete hearing, or the misunderstanding of legal principles as to the acquisition of property devolving upon the original state.

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

Justices Yoon In-bok (Presiding Justice)