[1] The method for acquiring the ownership of land upon completion of acquisition by prescription

[2] Whether an occupant of unregistered real estate acquires ownership of the real estate without registration only by completing the period of prescriptive acquisition (negative)

[1] Article 250 of the Civil Procedure Act, Article 245 (1) of the Civil Act / [2] Article 245 (1) of the Civil Act

[1] Supreme Court Decision 94Da39123 delivered on May 9, 1995 (Gong1995Sang, 2081) / [2] Supreme Court Decision 80Da3121 delivered on September 22, 1981 (Gong1981, 14375 delivered on September 28, 2006) Supreme Court Decision 2006Da22074, 22081 delivered on September 28, 2006 (Gong2006Ha, 1812)

Plaintiff (Law Firm Jeong, Attorneys Kim Jong-soo et al., Counsel for the plaintiff-appellant)

Korea

Seoul Central District Court Decision 2011Na26765 Decided December 15, 2011

The judgment of the court below is reversed, and the case is remanded to the Seoul Central District Court Panel Division.

The grounds of appeal are examined.

1. In order to acquire ownership of land through the completion of prescription under Article 245(1) of the Civil Act, the method of filing a claim for ownership transfer registration against the owner at the time of the completion of prescription that would lose ownership due to the acquisition of the ownership should be applied. There is no benefit to seek confirmation of ownership against a country which is merely a third party (see Supreme Court Decision 94Da39123, May 9, 1995, etc.).

In addition, even if the period of acquisition by prescription has expired, it does not directly take effect, but merely means that the right to request registration for the acquisition of ownership takes effect on such ground, and in the case of unregistered real estate, it cannot be deemed that the possessor acquires the ownership without registration even with the completion of the period of acquisition by prescription (see, e.g., Supreme Court Decisions 80Da3121, Sept. 22, 1981; 2006Da22074, Sept. 28, 2006; 22081, etc.).

2. According to the records, the plaintiff asserts that he occupied the land of this case, which is unregistered, in a peaceful and open possession with the intention to own it for twenty (20) years, and sought confirmation that he has ownership to the plaintiff. In light of the above legal principles, the plaintiff can seek confirmation of ownership against the defendant, not only by claiming the registration of ownership transfer against the situation title holder or his heir, but also by seeking confirmation of ownership by the situation title holder or his heir.

In contrast, the court below accepted the claim for the confirmation of ownership by treating the occupant of the unregistered real estate as the owner on the ground that there is no certified copy of the title holder of the assessment of the land in this case and there is no other method to specify it. In so doing, the court below erred by misapprehending the legal principles on the interest in confirmation and the prescriptive acquisition, which affected the conclusion of the judgment. The ground of appeal pointing this out is with merit.

3. Therefore, without examining the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Min Il-young (Presiding Justice)