Whether ownership is lost (affirmative) where real estate acquired by prescription before the enforcement date of the Civil Act but fails to be registered within six years from the enforcement date of the Civil Act (affirmative)

Article 10 (1) of the Addenda of the Civil Act (amended by Act No. 471 of Feb. 22, 1958) provides that "the acquisition or loss of real rights to real estate by a juristic act before the enforcement date of this Act shall lose its effect if it is not registered within six years from the enforcement date of this Act," and Paragraph (3) of the same Article provides that "the same shall apply in cases where real rights are acquired due to the completion of prescription before the enforcement date of this Act". Thus, even if the ownership of real estate was acquired due to the completion of prescription, the acquisition of real estate before the enforcement date of the Civil Act shall lose its effect unless it is registered within six years from

Article 245 of the Civil Act, Articles 8(1) and 10(1) and (3) of the Addenda of the Civil Act (amended by Act No. 471 of February 22, 1958)

Supreme Court Decision 91Da24311 Decided March 10, 1992 (Gong1992, 1274) Decided July 25, 1967

Plaintiff

Korea

Seoul District Court Decision 2000Na9672 delivered on July 14, 2000

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

The grounds of appeal are examined.

1. The judgment of the court below

According to the reasoning of the judgment below, the court below determined that the above non-party 2, who purchased the forest land of this case from the above non-party 1 in 1937 and purchased the forest land of this case from the above non-party 1 in 1940, and was transferred the forest land of this case to the plaintiff on the ground that it occupied the forest of this case in May 27, 1918, and the non-party 1, who owned the forest of this case without being registered as the owner until now, and that the non-party 2, who was the father of the plaintiff, was transferred the forest of this case to the non-party 1 in 1940, and was transferred the forest of this case to the non-party 3 in 1940, and the non-party 1, who owned the forest of this case to the non-party 4 in 1944, and the non-party 1, who owned the forest of this case by inheritance and inheritance of the forest of this case to the non-party 1 in this case.

2. Judgment of the Supreme Court

Article 10(1) of the Addenda of the Civil Act, which was enforced on January 1, 1960, provides that "the acquisition or loss of real rights to real estate by a juristic act before this Act enters into force shall lose its effect if it is not registered within six years from the date this Act enters into force," and Article 10(3) of the same Act provides that "the same shall apply to the case where a real right is acquired due to the completion of prescription before this Act enters into force." Thus, even if the ownership was acquired due to the completion of prescription on real estate before the enforcement date of the Civil Act, the acquisition of real estate shall lose its effect unless it is registered within six years from the enforcement date

Therefore, even if the above non-party 2 acquired ownership due to the completion of the acquisition by prescription on the forest of this case at the end of 1957 before the enforcement date of the Civil Act, if the forest of this case remains unregistered until now because the above non-party 2 did not complete the registration of ownership transfer due to the completion of the acquisition by prescription as stated in the judgment of the court below, the acquisition by non-party 2's ownership should lose its effect as of January 1, 1966 pursuant to the supplementary provision of the above Civil Act. Accordingly, the court below held that the forest of this case was owned by the plaintiff by the non-party 2 until September 1, 1976 on the premise that the non-party 2 acquired the ownership of the forest of this case upon the completion of the acquisition by prescription at the end of 1957, on the condition that the forest of this case was owned by the non-party 2. The purport of the ground of appeal pointing this out is with merit.

3. Therefore, the judgment of the court below is reversed without examining the remaining grounds of appeal (whether Nonparty 2 possession is carried out independently) and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Seo-sung (Presiding Justice)