(a) Whether the person who acquired ownership after the expiration of the prescriptive acquisition period claims the prescriptive acquisition;

B. Whether one of the co-inheritorss of the owner acquires the inherited portion of another heir after the expiration of the prescription period constitutes a new interested person after the expiration of the prescription period

(a) Even if the period for acquiring the ownership of real estate has expired, if the possessor of the real estate has first completed the registration of ownership transfer in the name of a third party and abandoned it, the possessor may not claim the prescriptive acquisition against the third party, unless there are any special circumstances.

B. Since one of the co-inheritors who succeeded to the status of the original owner after the acquisition period of real estate ownership by possession expired, the heir who acquired the inherited property by transfer cannot be deemed to be a new interested party after the completion of the prescription period.

Article 245(1) of the Civil Act

A. Supreme Court Decision 89Da21258 delivered on April 9, 1991 (Gong1991, 1339), 92Da21258 delivered on September 25, 1992 (Gong1992, 297), 92Da968, 9975 delivered on December 11, 1992 (Gong1993, 444) B. 92Da26871 delivered on October 13, 1992 (Gong192, 3134)

Plaintiff

Defendant Park Jong-sung, Counsel for the defendant-appellant

Daegu District Court Decision 92Na5704 delivered on April 21, 1993

1. Of the judgment of the court below, the part against the defendant regarding the defendant's 3/9 portion against 85 Man-si ( Address omitted) shall be reversed, and the case shall be remanded to the Daegu District Court Panel Division.

2. The remaining appeals are dismissed.

3. The costs of appeal against the dismissed portion are assessed against the defendant.

1. Judgment on the grounds of appeal Nos. 1 and 2 by the defendant's attorney

The court below, on August 31, 1963, acknowledged that the Plaintiff’s mother occupied and used this case’s land [the ( Address omitted) 85 square meters] and its ground house transferred by Nonparty 2 who is the Defendant, while residing in the house, sold it to Nonparty 3 around March 31, 1970. The above non-party 3 continuously occupied this case’s land and sold it again to the Plaintiff around December 1972. The Plaintiff did not err in the misapprehension of legal principles as to the admission of the above land by allowing the above non-party 1 and the Dong 4 and their families to reside in the above house from August 6, 1982. The court below acknowledged that the non-party 1 and the non-party 4’s family members were not in possession of the above house from 1983 to 10 years old, and that the non-party 1 and the non-party 4’s family members were not in possession of this case’s house from 983 years old to 16 days old.

2. Determination on the third ground for appeal

The court below determined on February 11, 1988 that the defendant's share in the land of this case was acquired on February 11, 1988, which was after the expiration of the prescription period of the plaintiff, and therefore, it cannot be asserted against the defendant due to the expiration of the prescription period of the plaintiff's share. As to the land of this case where the registration of ownership preservation was completed under the name of non-party 7, the registration of ownership transfer was made under the name of the defendant, non-party 2, and non-party 8 on May 5, 1962, and the registration of ownership transfer was made under the name of the defendant on May 5, 1962. On the same day, it is recognized that the registration of ownership transfer was made under the name of the non-party 3's own share in the above non-party's name, but there is no assertion or proof as to the fact that the defendant acquired the share in the above non-party's real transaction. Accordingly, the defendant's sole ownership transfer registration was made under the defendant's name immediately after the registration of ownership transfer.

Even if the acquisition period of real estate ownership by possession expires, if the possessor of the real estate has first abandoned the ownership transfer registration under the name of a third party without being registered under his/her own name, the possessor cannot assert prescriptive acquisition against the third party unless there are any special circumstances. It is difficult to conclude that the transfer registration of real estate under the name of the third party, which was owned by the defendant, was made in the name of the third party after the expiration of the acquisition period for the above real estate ownership transfer registration under the name of the non-party co-inheritors, as long as the ownership transfer registration had been made for the above real estate under the name of the non-party co-inheritors for the first time after the acquisition of the ownership by possession, and as long as the ownership transfer registration was made under the name of the non-party co-inheritors for the first time after the acquisition of the ownership by the non-party co-inheritors for the first time, it cannot be viewed that the ownership transfer registration under the non-party co-inheritors was not a new one for the reason that the ownership transfer registration was completed by the non-party co-inheritors.

However, according to the records, it is clear that the plaintiff did not present any assertion as to the fact that the registration of ownership transfer made in the name of the defendant with respect to the above non-party's shares was actually caused by the division of inherited property through consultation, and that there is no evidence to acknowledge this.

Nevertheless, the court below rejected the defendant's defense by judging that the defendant acquired the above non-party's share of inheritance through a real transaction, unless the defendant asserts and proves that the above non-party's share of inheritance was acquired through a real transaction. Thus, the court below did not err in the misapprehension of legal principles as to the ground for registration of transfer of ownership, the burden of proof, or the validity of the prescription for the acquisition of real estate, and it is clear that such illegality has affected the conclusion of the judgment. Thus, there is a reason to point this out.

3. Therefore, of the judgment of the court below, the part against the defendant as to the share of 3/9 of the land of this case against the defendant is reversed, and the case is remanded to the court below for a new trial and determination as to this part. The defendant's remaining appeal (as to the share of 2/3 of the land of this case) is dismissed, and the costs of appeal as to the part against which the appeal is dismissed are assessed against the losing defendant

Justices Yoon-young (Presiding Justice)