Whether the seizure or provisional seizure of real estate from the prescriptive acquisition of ownership of real estate due to possession constitutes a ground for suspending the prescriptive acquisition (negative)

Article 247(2) of the Civil Act provides that “The provisions on the interruption of extinctive prescription shall apply mutatis mutandis to the period for the acquisition of ownership of real estate by possession.” Article 168 Subparag. 2 of the Civil Act provides that “a seizure, provisional seizure, or provisional disposition” shall be the cause interrupting extinctive prescription. In the acquisition of ownership of real estate by possession, the cause for the interruption of extinctive prescription shall be the one which can be recognized as the continuous destruction of the existing possession status. However, “a seizure or provisional seizure” under Article 168 Subparag. 2 of the Civil Act is either the means for compulsory execution of monetary claims or the means for preservation thereof, and thus, even if the seizure or provisional seizure was taken prior to the completion of the period for the acquisition of prescription, it cannot be said that the existing possession status has been destroyed. Therefore, this cannot

Article 168 Subparag. 2, Article 245, and Article 247(2) of the Civil Act

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Han-sung, Attorneys Park Jae-young and 1 other, Counsel for plaintiff-appellant)

Plaintiff (Law Firm Down, Attorneys Go Jae-seok et al., Counsel for plaintiff-appellant)

Scar Savings Bank (Law Firm No. Gong, Attorneys Jeon Jong-min et al., Counsel for the plaintiff-appellant)

Seoul Central District Court Decision 2018Na1161 Decided November 14, 2018

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

The grounds of appeal are examined.

Article 247(2) of the Civil Act provides that “The provision on the interruption of extinctive prescription shall apply mutatis mutandis to the period for the acquisition of ownership of real estate by possession.” Article 168 Subparag. 2 of the Civil Act provides that “a seizure, provisional seizure, or provisional disposition” shall be the cause interrupting extinctive prescription. In the acquisition of ownership of real estate by possession, the cause for the interruption of extinctive prescription shall be the one which can be recognized as the continuous destruction of the existing possession status (see, e.g., Supreme Court Decisions 92Da52764, 52771, May 25, 1993; 97Da6186, Apr. 25, 1997). Even if the seizure or provisional seizure was taken prior to the completion of the extinctive prescription period, the cause for the interruption of extinctive prescription cannot be deemed as the means for pecuniary enforcement or the preservation method, and thus, it cannot be deemed as the cause for the interruption of extinctive prescription.

The court below, based on its stated reasoning, rejected the Defendant’s assertion that the acquisition of ownership following the Plaintiff’s acquisition by prescription was recognized, and that the decision was made prior to the completion of the acquisition period, and that the decision was served on the Plaintiff, the possessor, and that the acquisition by prescription was interrupted, on the ground that the seizure or provisional seizure of the real estate cannot be a ground for suspending the acquisition by prescription.

In light of the aforementioned legal principles and records, the above determination by the court below is just and acceptable. Contrary to the allegations in the grounds of appeal, the court below did not err by misapprehending the legal principles on the interruption of prescription for the acquisition of prescription.

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 on the bench.

Justices Kim Seon-soo (Presiding Justice)