[1] The starting point of the statute of limitations for compensatory damages due to non-performance of the duty to register cancellation of ownership transfer

[2] Damages caused by nonperformance of the duty to register cancellation of ownership transfer registration

[3] In a case where Party A, by coercioning Party B and completing the registration of ownership transfer for real estate by selling it to another person after completing the registration of ownership transfer for real estate due to defective declaration, whether Party A’s obligation to register ownership transfer for real estate is impossible if Party B’s lawsuit seeking cancellation of ownership transfer is finalized against the registered titleholder (affirmative); and whether Party B’s obligation to cancel ownership transfer for real estate can be deemed to have reached the status of nonperformance at the time of completion of the acquisition by prescription if Party B lost as a result of the acceptance of the registration by the registered titleholder’s registry in the lawsuit claiming cancellation of registration (negative)

[1] The extinctive prescription of a claim for compensatory damages due to nonperformance of the duty to register cancellation of ownership transfer is proceeding from the time when the duty to register cancellation return to the status of nonperformance.

[2] The amount of damages suffered by the right holder due to the impossibility of performance of the duty to register cancellation of ownership transfer registration is, in principle, equivalent to the market price of the object at the time of impossibility of performance.

[3] In a case where Gap coercion Eul and completed the registration of ownership transfer by selling the real estate to another person after the completion of the registration of ownership transfer by defective declaration, the registration of ownership transfer shall be deemed to have been impossible to perform since there are special circumstances to decide whether to restore the registration by litigation or other methods, and thus, Gap's obligation to register ownership transfer against Eul cannot be deemed to have yet been fulfilled. However, in a case where Eul's lawsuit claiming the cancellation of ownership transfer or lawsuit claiming the transfer of ownership for the restoration of real name filed against the registered titleholder against Eul becomes final and conclusive, Gap's obligation to register the cancellation of ownership transfer registration of real estate for the purpose of registration is deemed to have been impossible to perform, and even if Eul lost as a result of the recognition of the acquisition by prescription by the registered titleholder in the lawsuit claiming the cancellation

[1] Articles 166 and 390 of the Civil Act / [2] Article 393 of the Civil Act / [3] Articles 186, 245(2), and 390 of the Civil Act

[1] Supreme Court Decision 72Da2600 delivered on October 10, 1973 (Gong1973, 7549), Supreme Court Decision 2000Da47361 delivered on December 27, 2002 (Gong2003, 495) / [2] Supreme Court Decision 74Da1872 delivered on May 27, 1975 (Gong1975, 8542), Supreme Court Decision 94Da61359, 61366 delivered on June 14, 196 (Gong196Ha, 2151) / [3] Supreme Court Decision 2000Da18196 delivered on January 30, 201

Plaintiff (Attorney Lee Jae-sik, Counsel for the plaintiff-appellant)

Korea

Seoul High Court Decision 2004Na64564 decided May 17, 2005

Each appeal is dismissed. The costs of appeal are assessed against each party.

The plaintiff's grounds of appeal and the defendant's grounds of appeal are also examined.

The extinctive prescription of a claim for compensation due to impossibility of performance of the duty to register the cancellation of ownership transfer is progress from the time when the duty to register the cancellation is returned to the situation where the duty to register the cancellation is impossible (see, e.g., Supreme Court Decisions 72Da2600, Oct. 10, 1973; 200Da47361, Dec. 27, 2002). The amount of damages suffered by the right holder due to the impossibility of performance of the duty to register the cancellation of ownership transfer is, in principle, the amount equivalent to the market price of the object at the time when the performance becomes impossible (see, e.g., Supreme Court Decisions 74Da1872, May 27, 1975; 94Da61359, 61366, Jun. 14, 196). Moreover, even if the defendant sold the ownership transfer registration in the status of real estate by coercion of the plaintiff and sold it to another person and lost the ownership transfer registration by the defendant's claim for cancellation of ownership transfer registration.

Upon citing the judgment of the court of first instance, the court below acknowledged the following facts: the plaintiff entered into a contract to the effect that five parcels of land, such as this case, are donated to the defendant by the investigator of the Joint Investigative Headquarters under the defendant's jurisdiction; based on such contract, the ownership transfer registration has been completed in succession in the name of the registered titleholder; the plaintiff filed a lawsuit against the last registered titleholder for the claim for ownership transfer registration on the ground that the former registered titleholder acquired each of the land in this case by prescription, but the latter became final and conclusive; the defendant's obligation to register ownership transfer registration upon the cancellation of the plaintiff's declaration of intention of transfer became impossible due to the final and conclusive judgment dismissing the plaintiff's claim for ownership transfer registration in the above case for the above registration of transfer registration; thus, the plaintiff's right to claim damages therefrom shall begin to run from the expiration of the statute of limitations; and the plaintiff's claim for ownership transfer registration has already been filed on April 18, 2005; and therefore, the judgment of the court below against the plaintiff 2009Da61960.

Furthermore, the lower court determined that the Defendant is liable to compensate the Plaintiff for the amount of damages calculated in accordance with the judgment, on the ground that the Plaintiff’s loss was equivalent to the market price of the instant land (A), (b), and (c) at the time of June 20, 200, which became final and conclusive in the above claim for the registration of transfer of ownership.

According to the records, the above judgment of the court below is just and there is no error of law such as misunderstanding of legal principles as to the occurrence and exercise time of damages.

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

Justices Shin Shin-chul (Presiding Justice)