The case reversing the lower judgment on the ground that the lower court erred by failing to exercise the right to ask for explanation as to whether to claim recognition, which is a ground for interrupting prescription.

The case reversing the judgment of the court below which did not exercise the right of explanation on the ground that, in light of the fact that the owner of a real estate demanded the possessor or the successor of the real estate to order the possessor or the successor of the real estate without permission, and that the possessor or the successor of the possessor also demanded the owner to lease, exchange, and pay the real estate, etc., the possessor's possession and the successor of the real estate can be viewed as the assertion that the prescription has been suspended by approving the ownership of the real estate, since the possessor or the successor of the possessor's possession is not the possession which is neither the possession nor the peace of the owner, but the possession of the possessor or the successor of the real estate.

Article 126 of the Civil Procedure Act, Article 168 subparag. 3 of the Civil Act, and Article 247(2) of the Civil Act

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Domin, Attorneys Park Jong-soo and 1 other, Counsel for plaintiff-appellant)

Republic of Korea (Attorney Han Man-chul et al., Counsel for defendant-appellant)

Defendant Lessee (Counterclaim Plaintiff) and one other (Attorney Yoon Young-young, Counsel for the defendant-appellant)

Defendant 3 and one other

Gwangju High Court Decision 94Na1141, 1158 delivered on October 14, 1994

The judgment of the court below is reversed and the case is remanded to the Gwangju High Court.

The grounds of appeal are examined.

1. Fact-finding and judgment of the court below

According to the reasoning of the judgment of the court below, the court below acknowledged the following facts on September 21, 1964 regarding each real estate listed in the separate sheet attached to the judgment of the court below (hereinafter referred to as each real estate of this case) on each of the following facts based on the premise that the defendant (including the counter-party; hereinafter referred to as the defendant only) possessed each of the buildings listed in the purport of the claim of the principal claim (including the part of the 5 real estate listed in the separate sheet) as stated therein, and based on the adopted evidence.

Each real estate of this case was owned by Nonparty 1, both of which were located within the fenced with two buildings on the 6th real estate as stated in the above list, together with the two buildings on the 6th real estate.

However, on October 30, 1963, the above non-party 1 was subject to the purchase and sale contract with the non-party 2 on December 24, 1963 to sell each of the real estate of this case at KRW 10,000,000 except for the above two buildings among the above non-party 2 building units of this case, and confirmed the sale contract with the non-party 2 to sell the above non-party 2 at KRW 10,000,000, the down payment was already paid within 1964, and the remainder was paid at KRW 360,00 among them was paid at KRW 360,00 in our country's currency, the remainder was paid at USD 22,00 in accordance with the exchange rate at that time, but the above non-party 2 agreed to sell and sell the real estate of this case at KRW 36,00,000 in the above non-party 2's name to the plaintiff 2,000,006.

Accordingly, on October 20, 1966, Nonparty 1 rejected the Plaintiff’s demand for delivery to the instant Building, and continuously occupied the instant Building, and rejected Nonparty 2 from possession of the instant Building on October 20, 196, and filed a lawsuit against the said Nonparty 2 and the Plaintiff for the claim for cancellation of ownership transfer registration against Nonparty 2 and the Plaintiff, etc. on the ground that the registration of ownership transfer in the said Nonparty 2 and the registration of ownership transfer in the Plaintiff’s name based thereon was invalid, on the ground that: (a) the said Nonparty 1 brought a lawsuit against the said Nonparty 2 and the Plaintiff, etc. for the claim for cancellation of ownership transfer registration; and (b) filed a lawsuit against the said Nonparty 2 and the Plaintiff, etc. on March 24, 1970.

In addition, on March 1, 1968, when the above lawsuit was in progress, the above non-party 1 donated and transferred the family unit of this case to Defendant 1 and Defendant 2, his mother, and thereafter, the above Defendants jointly occupied the family unit of this case and managed it to Defendant 3 and Defendant 4 by leasing part of the building.

In addition, the court below reasoned that the above non-party 1 and the non-party 2 were donated to the above non-party 1 and the non-party 1 were well aware of the non-party 1's possession, and that the plaintiff demanded the above non-party 1 and the defendant 1 et al. to order the above non-party 1's possession of each of the real estate of this case without permission, and that these were demanded to the plaintiff for lease, exchange, and non-party 1's possession of each of the above non-party 1 and the non-party 2's possession of the above non-party 1 and the non-party 2's possession of each of the above real estate of this case shall be presumed to be possession of the above non-party 1 and the non-party 2's intention to hold the above non-party 8's possession of the real estate of this case and the non-party 1 and the non-party 2's intention to hold the above non-party 1's possession or exchange of each of the above real estate of this case.

2. Judgment of party members

However, the above non-party 1's testimony and non-party 3's non-party 1's non-party 1's non-party 6's non-party 1's non-party 6's non-party 1's non-party 6's non-party 1's non-party 6's non-party 1's non-party 8's non-party 1's non-party 6's non-party 1's non-party 6's non-party 1's non-party 8's non-party 1's non-party 6's non-party 1's non-party 9's non-party 1's non-party 6's non-party 1's non-party 3's non-party 6's non-party 1's non-party 6's non-party 1's non-party 6's non-party 1's non-party 6's non-party 3's non-party 1's non-party 1'6'

The plaintiff's assertion that the non-party 1 and the non-party 2's possession of each of the above non-party 1 and the non-party 2 did not constitute an intentional possession and a peaceful possession of each of the above non-party 1 and the non-party 2's possession of each of the above real estate is suspended by approving the plaintiff's ownership of each of the above real estate (refer to the judgment of the court below 94Da1324, 13251 delivered on October 7, 194). Since the plaintiff's assertion that the non-party 1 and the non-party 2 did not have an intention to own and have an intention to own, it can be viewed that the prescription has been suspended by approving the plaintiff's ownership of each of the above real estate, the court below's assertion that the non-party 1 and the non-party 1 demanded the plaintiff to order the above non-party 1 and the defendant 1, etc. to sell, exchange, and make a decision on this issue clearly by exercising the plaintiff's right of explanation.

(A) In light of the fact-finding by the court below, the testimony of Non-party 5, Non-party 6, and Non-party 1 among the evidence employed by the court below for the purpose of finding the above facts is that all the above witnesses are in a family relationship with the defendant 1, defendant 2, and the above non-party 1, who was his family member of the court below on March 1, 1968, called himself as the owner of each of the real estate of this case and called it as the owner of each of the real estate of this case to the defendant 1 and defendant 2, and there is room for deliberation on its credibility, and it is not normal that the above non-party 1 still donated the real estate in a lawsuit pending to the defendant 1, defendant 2, and the above non-party 1, who was the related party of this case. In light of the fact-finding by the court below, it shall be pointed out that the above facts-finding by the court below is not necessarily acceptable.

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 Jeong Jong-ho (Presiding Justice)