The meaning of an action under Article 749(2) of the Civil Act and the recognition of the possessor's bad faith who has lost in a lawsuit on this right.

The "Lawsuit" under Article 749 (2) of the Civil Code refers to a lawsuit seeking the return of the land on the ground of unjust enrichment, but on the other hand, the person who has lost the lawsuit claiming the cancellation of the registration of land ownership transfer pursuant to Article 197 (2) of the Civil Code shall be deemed to be the possessor in bad faith of the land from the time the winning party files the lawsuit.

Articles 749(2) and 197(2) of the Civil Act

Supreme Court Decision 74Da525 Decided July 16, 1974

[Judgment of the court below]

Attorney Kim Jong-young, Counsel for the defendant-appellant

Seoul High Court Decision 85Na3782 delivered on May 20, 1986

The appeal is dismissed.

The costs of appeal are assessed against the defendant.

We examine the grounds of appeal.

According to Article 749(2) of the Civil Code, when a bona fide beneficiary has lost, it shall be regarded as the beneficiary of bad faith from the time the lawsuit was brought to the court, and "the lawsuit" refers to the lawsuit seeking return on the ground of unjust enrichment as the theory of lawsuit (see Supreme Court Decision 74Da525 delivered on July 16, 1974).

However, according to Article 197 of the Civil Act, the possessor shall be presumed to have occupied in good faith (Article 197 (1) of the Civil Act), but even if a bona fide possessor has lost in an action on this right, he shall be deemed to have been an possessor in bad faith from the time the action was brought (Article 197 (2) of the Civil Act). Thus, as the court below determined lawfully, if the plaintiff is the owner of the land of this case and the registration of transfer of ownership in the name of the defendant is the registration invalidation, and the litigation case against the defendant is final and conclusive against the defendant at the end of the lawsuit claiming cancellation of the registration of transfer of ownership in the name of the defendant as to the land of this case against the defendant, the defendant shall be deemed to have been an possessor in bad faith in the land of this case from September 8, 1979, which is the time of filing the lawsuit claiming cancellation of the plaintiff's transfer of ownership pursuant to Article 197 (2) of the Civil Act. Accordingly, the court below did not err by misapprehending the legal principles as to order the return of unjust enrichment.

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 Lee Jae-hee (Presiding Justice)