[1] Whether the original owner may exercise his/her legitimate right as the owner until the acquisition of ownership is completed in the name of the possessor in the absence of circumstances, such as where the possessor exercises his/her right to request the transfer of ownership on the ground of the expiration of the acquisition period after the expiration of the acquisition period by possession, or the original owner seeks to interfere with the possessor’s acquisition of right with the acquisition

[2] Whether the prescriptive acquisitor may exercise the right to indemnity against the original owner or exercise the right to claim the return of unjust enrichment against the amount equivalent to the repayment of the right to collateral security established on the land, the prescriptive acquisition of which has been completed by the original owner (negative)

[1] The original owner may exercise his/her right as the owner until the ownership transfer registration is completed in the name of the possessor, except in extenuating circumstances, such as where the possessor files a claim for ownership transfer registration due to the expiration of the period of acquisition by possession against the original owner, or where the original owner knowingly intends to interfere with the possessor’s acquisition of the right.

[2] After the completion of the acquisition by prescription, the original owner either disposes of the land to a third party or exercises the right as the owner, such as the establishment of a limited real right, and the change of the present condition of the land, and thus, it cannot be asserted against the third party who has acquired the ownership of the land or the limited real right through the above disposal act, as well as against the completion of the acquisition by prescription and the retroactive effect of the acquisition of the right. In this case, the prescriptive acquisitor acquires the ownership by registration under the actual or legal status of the land where the change of the present state due to the legitimate exercise of rights by the original owner or the establishment of the limited real right, etc. In this case, the repayment of the secured debt of the right to collateral established on the land by the original owner is for the purpose of securing the complete ownership by removing the burden on the land to be accepted by the prescriptive acquisitor and thus, it is an act for his own interest. Accordingly, the equivalent of the repayment amount cannot be exercised for the unjust enrichment on the ground of subrogation against the original owner.

[1] Articles 245(1) and 247(1) of the Civil Act / [2] Articles 245(1), 480, 741, and 750 of the Civil Act

[1] Supreme Court Decision 97Da53632 delivered on July 9, 1999 (Gong1999Ha, 1567) / [2] Supreme Court Decision 90Nu5375 delivered on February 26, 1991 (Gong1991, 1110), Supreme Court Decision 94Da4509 delivered on July 11, 1995 (Gong195Ha, 2747)

[Judgment of the court below]

Defendant

Seoul High Court Decision 2005Na38982 Delivered on November 17, 2005

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

We examine the grounds of appeal.

Unless there exist special circumstances, such as filing a request for ownership transfer registration due to the expiration of the period of prescriptive acquisition due to possession against the original owner, etc., the original owner may exercise his/her right as the owner of the land until the transfer of ownership is completed in the name of the possessor, with the knowledge of the expiration of the period of prescriptive acquisition by the original owner, etc. For such reasons, the original owner may exercise his/her legitimate right to the land as the owner until he/she performs the transfer of ownership under the name of the possessor. As such, the original owner either disposes of the land to a third party before the completion of the prescriptive acquisition, or exercises his/her right as the owner, such as establishment of a limited real right, change of the land, etc., before the completion of the prescriptive acquisition, and thus, cannot be deemed as tort in relation to the said third party who acquired the ownership of the land through the above disposal act. It is not reasonable for the original owner to exercise the right to demand the return of the original owner or establish a limited real right, and thus, it is not reasonable for the original owner to exercise the ownership as 97.5.

Examining the reasoning of the judgment below in light of the records, the court below is just in finding that the plaintiff acquired the real estate in this case owned by the defendant as of February 25, 1995 by prescription and exercised his right based on the completion of the above prescriptive prescription against the defendant on November 17, 2001 (the same shall apply even if the day on which the above right is exercised is deemed to be August 20, 2001, as the court stated in the conjunctive decision) until February 18, 1999, 40,000 won was loaned from the Songsan Agricultural Cooperative as of February 18, 1999, and it did not err in the misapprehension of legal principles as to the plaintiff's claim for reimbursement of the above maximum debt amount as to the above real estate in this case against the defendant, which was established as of January 29, 196, for the purpose of preventing the auction of the above real estate in a voluntary auction procedure with the maximum debt amount of KRW 60,000,000,000 for the plaintiff's claim for reimbursement of this case.

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 Hong-hoon (Presiding Justice)