[1] In a case where the transfer registration of ownership in the name of a third party is completed after the completion of the prescription period for the possession of real estate, whether the second acquisition can be asserted for the completion of the prescription period by using the time of change of ownership as a new starting point of view (affirmative

[2] In a case where a new secondary acquisition by prescription begins and the title holder on the register is changed before the expiration of the period for the acquisition by prescription, whether the title holder on the register at the time of the completion of the acquisition by prescription may claim the prescriptive acquisition (affirmative)

[1] Even in cases where a transfer of ownership in the name of a third party has been made for the real estate between the time the acquisition by possession of the real estate was completed and the time the original possessor continues to occupy the real estate and the time the owner changes, even if the time the change was made, if the period of possession has expired again, the possessor may claim the completion of the second acquisition by taking the time of change in ownership in the future of the third party as the starting point for the new acquisition by prescription.

[2] [Majority Opinion] Even if the title holder on the register is changed before the expiration of the period of prescriptive acquisition, the reason alone cannot be deemed as the possessor’s continued destruction of the existing actual state, and thus, it cannot be the reason for suspending the prescriptive acquisition. As such, the new title holder would be at the time of the completion of prescriptive acquisition at the time of the completion of prescriptive acquisition and would be at a disadvantage due to the completion of prescriptive acquisition, and the new title holder may claim the prescriptive acquisition against his/her title holder. This legal principle is reasonable to deem that it is equally applied to cases where the new title holder on the register is changed before the expiration

[Dissenting Opinion by Justice Park Ill-hwan, Justice Kim Nung-hwan, and Justice Shin Young-chul] (A) Since our Civil Act takes the so-called form that the change in real rights due to a juristic act should be registered and provides that ownership shall be acquired by registering the acquisition by prescription of possession of real estate, it is desirable to consider that the establishment of legal relations based on possession, not registration, should be allowed within

(B) The Majority Opinion may seriously undermine the safety of transaction under the Civil Act that has adopted the so-called form principle. As to how to operate the system of prescription for acquisition of possession under the Civil Act, the previous Supreme Court precedent held that “Although the previous Supreme Court ruling has a system that excludes locked persons on the right and respects the real situation of occupancy and use, it should be recognized only under extremely exceptional circumstances, and that excessively broad recognition is a large factor that unfairly infringes on another person’s property right. Therefore, it seems that the law does not result in the failure to protect the real property right, and therefore, the requirements for acquisition should be strictly interpreted.” This is still valid.

(C) The Majority Opinion does not have any explanation as to the grounds or reasons for newly deeming the time of change of the name on the registry when the title holder on the registry was changed after the period of prescription for the first possession was completed. If the title holder on the registry changed after the expiration of the period of prescription for the first possession, if the title holder on the registry was aware of the change of the ownership owner on the registry, and if the original possessor began possession with the knowledge of the change of ownership on the registry, then it shall be deemed as the possession on the registry, and if the original possessor continues possession without knowing the change of ownership on the registry, there is no reason to regard the time of change of ownership on the registry as the starting point of new possession.

[1] Article 245 (1) of the Civil Code / [2] Article 245 (1) of the Civil Code

[1] [2] Supreme Court en banc Decision 93Da46360 delivered on March 22, 1994 (Gong194Sang, 131), / [2] Supreme Court Decision 73Da1093, 1094 delivered on November 27, 1973, Supreme Court Decision 75Da2220, 2221 delivered on March 9, 1976 (Gong1976, 909), Supreme Court Decision 91Da4329 delivered on March 10, 192 (Gong192, 1290), Supreme Court Decision 92Da41059 delivered on April 12, 1994 (amended on April 28, 195), Supreme Court Decision 97Da196975 delivered on April 196, 197 (amended on April 29, 199)

Plaintiff

Defendant (Attorney Lee Jong-soo et al., Counsel for defendant-appellant)

Changwon District Court Decision 2006Na6052, 6069 decided January 25, 2007

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

The grounds of appeal are examined.

1. Even in cases where a transfer of ownership in the name of a third party is made in the name of the original possessor even if the ownership of the real estate has been continuously occupied after the completion of the prescription period, and in cases where the period of possession of the real estate has passed again by counting the time of change as the starting point for the change of the owner, the possessor may claim the completion of the second acquisition period by counting the time of change in ownership in the future of the third party as the starting point for the new acquisition of the prescription period (see Supreme Court en banc Decision 93Da46360, Mar. 22, 1994, etc.).

In addition, even if the title holder on the register is changed before the expiration of the prescriptive acquisition period, it cannot be deemed that the reason alone destroyed the possessor’s existing fact-finding status, and thus, it cannot be the reason for suspending the prescriptive acquisition (see, e.g., Supreme Court Decisions 75Da2220, 221, Mar. 9, 197; 97Da6186, Apr. 25, 197). As such, the new title holder would be at the time of the expiration of the prescriptive acquisition period and would be at a disadvantage due to the completion of the prescriptive acquisition as a party to the change in the right and duty at the time of the expiration of the prescriptive acquisition, and thus, the new title holder may claim the prescriptive acquisition against his own title (see, e.g., Supreme Court Decisions 73Da1093, 1094, Nov. 27, 197; 91Da4329, Mar. 10, 1992).

Therefore, Supreme Court en banc Decision 93Da46360 Decided March 22, 1994; Supreme Court Decision 92Da41054 Decided April 12, 1994; Supreme Court Decision 94Da18577 Decided February 28, 1995; Supreme Court Decision 98Da40688 Decided February 12, 199; Supreme Court Decision 2000Da43963 Decided December 27, 2001, which held that, in order to claim the completion of the second acquisition by using the time when the landowner changes as the starting point for the new acquisition of real estate after the completion of the acquisition by prescription, the registrant shall be the same and the owner shall not change the acquisition by prescription to the extent that it is inconsistent with this Opinion.

2. According to the judgment below and the evidence duly admitted by the court below, each ownership transfer registration was successively completed on September 10, 1988 under the name of the non-party 2, the non-party 2, and the plaintiff (the counter-party 1; hereinafter referred to as the "Plaintiff") on September 26, 1987, on three parcels, including 155 square meters and 360 square meters (hereinafter referred to as the "the building site in this case"). On February 15, 1982, with respect to the building site in this case before the merger, the ownership transfer registration was made in the name of the non-party 2 on March 25, 198, and on September 10, 198, under the name of the non-party 1 (the non-party 1; hereinafter referred to as the "the plaintiff"), and the defendant (the non-party 1, the non-party 2, who purchased the building site in this case and owned the land in this case.

Examining the legal principles as seen earlier in light of the above facts, the Defendant may newly take the time when the first acquisition by prescription on the land in the instant case was completed and did not register the completion of the first acquisition by prescription as to the land in the instant case as the starting point for the second acquisition by prescription. From that point of time, the Defendant may claim for the prescriptive acquisition by prescription against the Plaintiff who acquired the title of ownership on the register of the instant land before the lapse of the second acquisition by prescription.

Nevertheless, the court below rejected the Defendant’s assertion on the completion of the prescriptive acquisition period on the ground that the time when the ownership transfer registration was completed in the name of Nonparty 2 and the Plaintiff cannot be considered as the starting point for new prescriptive acquisition on the ground that the ownership transfer registration was completed in order after the completion of the ownership transfer registration in the name of Nonparty 1 in the name of Nonparty 1, and subsequently rejected the Defendant’s claim for the counterclaim against the Defendant seeking the registration of ownership transfer as to the land in dispute in this case, and accepted the Plaintiff’s claim for the principal lawsuit seeking the transfer of ownership registration. In this case, the court below erred by misapprehending the legal principles on the progress of new prescriptive acquisition after the prescriptive acquisition

Accordingly, the lower court should also examine the Plaintiff’s assertion of possession of the land on the other hand, taking into account the following factors: (a) the size of the land purchased in this case and the land in dispute; (b) the developments leading up to the possession of the surrounding land, the ownership of the land owned by the Defendant not occupied by the Defendant; and (c) relevant circumstances

3. Therefore, 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 except for a dissenting opinion by Justice Park Poe-young, Justice Kim Nung-hwan, and Justice Shin Young-chul, and a concurrence with the Majority by Justice Kim Young-ran, Justice Lee Hong-hoon, and Justice Jeon Soo-ahn, and

4. Dissenting Opinion by Justice Park Ill-hwan, Justice Kim Nung-hwan, and Justice Shin Young-chul

A. Article 186 of the Korean Civil Code explicitly declares that “The acquisition, loss, and acquisition of real rights due to a juristic act on immovables shall take effect by registration.” The main text of Article 187 of the so-called principle provides that “The acquisition of real rights on immovables by inheritance, expropriation, judgment, auction, and provisions of other Acts shall not require registration.” As to the acquisition of real rights on immovables by possession, Article 245(1) of the Civil Code explicitly states that “the person who occupies real estate in peace and openly and openly for twenty years shall acquire ownership by registration shall acquire ownership” does not fall under “acquisition of real rights on immovables by the provisions of other Acts” as referred to in the main sentence of Article 187 of the Civil Code. As a result, the acquisition by prescription of real rights on the real estate by the person for whom the period of acquisition by prescription has completed and the person who registered the ownership pursuant thereto cannot avoid conflicts of interest.

The criticism and question from the legislative policy point of view as to the provisions of the Korean Civil Code, separate from the criticism and question, the fact that the acquisition by prescription has been completed cannot naturally acquire the ownership of the real estate, and only if the registration has been made, the ownership of the real estate shall be acquired, and for this purpose, the status and interest of the person whose acquisition by prescription has been completed, who is an incomplete holder of the right, shall be adequately protected. However, it is necessary to minimize the risk of transaction by damaging public confidence in the so-called principle of the acquisition by transfer and loss of real right to real estate and the related public trust.

Therefore, the Supreme Court has established the following principles and standards with respect to the acquisition by prescription in order to find an appropriate contact with the two opposing requests as above. Secondly, if the occupancy period of real estate has been completed, the original owner of the real estate is a party to the change of right, and the original owner can oppose the acquisition by prescription without registration for the original owner, while the original owner cannot exercise the right based on ownership as a person liable for the transfer registration for the possessor (see Supreme Court Decisions 76Da242 delivered on March 22, 197; 92Da51280 delivered on May 25, 1993, etc.). 2. It is difficult for the so-called Supreme Court to assert the effect of the acquisition by prescription as to the acquisition by prescription of real estate at the time of the expiration of the 360-year period, including the acquisition by prescription, as the former owner of the real estate without registration for the expiration of the 197-year period.

B. Furthermore, in the case of the application of the above third principle, even after the first 20 years have passed since the third party's transfer registration was made, if the first 20 years have passed since the first 3rd party's possession was not changed during the said period, the legal relations at this time may not be regulated differently from the third principle. The possessor at this time neglects his/her right to request registration from the first 3rd party after the completion of the prescription period for the acquisition of possession, and neglects his/her right to make the third party a registration registered under the third party's name, thereby failing to assert the effect of the completion of the prescription period for the acquisition of possession against the third party. The third party who has completed the registration is the locked party in the sense that he/she did not exercise his/her ownership for 20 years or more after the date of the registration as well as by disposing of the real estate, etc. However, the possessor at this point of view that the first 3rd party's possession of the real estate from the beginning and the purpose of the acquisition by prescription should be respected, and the new principle of the third party's possessor.

C. However, the Majority Opinion further expands the exception of the above three principles and the fourth principles as seen in the foregoing Section, and thereby, the period of prescription for the acquisition of new possession may run at the time of the commencement of the new period of prescription for the acquisition of possession, even if the possessor on the registry changes several times between the possessor on the registry, even if the possessor on the registry changes several times. This goes beyond the simple balancing of interests between the possessor on the registry and the titleholder, as seen in the foregoing Section b., going beyond the point of time of changing the name of the possessor on the registry. However, such Majority Opinion is unreasonable.

First, as seen earlier, our Civil Act provides that “the creation and transfer of a real right shall take effect only by the declaration of intention of the parties” (Article 176 of the former Civil Act) and takes so-called principle of intention, and as to the prescription for the acquisition by prescription for possession, a person who has occupied another person's water in peace and openly for twenty years shall acquire the ownership.” (Article 162 of the former Civil Act) provides that “The person who has occupied the property of another person shall acquire the ownership.” (Article 162 of the former Civil Act) and, as to the acquisition by prescription for the acquisition by prescription for the possession of real property, according to the so-called form principle that the change in real right due to a juristic act must be registered, it is desirable to consider that the legal relationship should be determined based on the status of possession prior to the registration, and if the acquisition by prescription has not been completed, it cannot be viewed that the other party has the legitimate ground or exception to the acquisition by prescription for the acquisition by prescription for the ownership.

Next, the majority opinion may seriously infringe the safety of transaction under the Civil Act that adopted the so-called form principle. The Supreme Court Decision 94Da22484 Decided May 9, 1995 already held that the limitation period for the acquisition of possession under the Civil Act is a system that excludes the potential person above the right and respects the real situation of the occupancy and use. However, this should be recognized only under extremely exceptional circumstances. It seems that the excessive recognition of the limitation period is a major factor that unfairly infringes on other's property right, and therefore, it seems that the law does not unfairly infringe on other's property right, and therefore, the requirements for the acquisition should be strictly interpreted, which is valid. The majority opinion is unreasonable in that it is intended to operate the system.

Furthermore, the Majority Opinion does not have any explanation of the grounds or reasons for newly deeming the time of change of the name on the registry as the starting point of the prescription period for acquisition by possession in a case where the title holder on the registry is changed after the completion of the prescription period for the primary acquisition by possession. If the original possessor starts possession with the knowledge of change of the owner on the registry well, if the original possessor begins possession with the knowledge of such change, it shall be deemed as the possession by another owner. In addition, if the original possessor continues possession without knowing the change of the owner on the registry, there is no reason to regard the time of change of owner on the registry as the starting point of new possession

Above all, in the future, the ultimate form of the acquisition by prescription system under the Civil Act of the Republic of Korea should be what kind? Although there remain unregistered real estate up to now and there is no recognition of public confidence in the registration, we have made an incidental effort to complete the registration system and to recognize public confidence in the registration throughout the half century. If our registration becomes at the time of recognition of public confidence in the future, it will be arranged in the direction of recognizing the prescription for acquisition by prescription only for real estate within extremely limited range, such as unregistered real estate or unknown real estate owned by the owner, as shown in the legislation of a foreign country taking the so-called --called ---called - regard as to changes in real rights. The majority opinion is reverse

D. Therefore, the opinion of the Supreme Court precedents that the majority opinion intends to change must be maintained as it is. The same purport of the judgment below is just, and the majority opinion is unfair, and the defendant's appeal is not acceptable.

As above, we express the reasons why we do not agree with the Majority Opinion.

5. Concurrence with the Majority Opinion by Justice Kim Young-ran, Justice Lee Hong-hoon, and Justice Jeon Soo-ahn

A. The Dissenting Opinion points out that the Majority Opinion considers the time when the owner on the registry changes as the time of commencing a new occupation, and further points out that there is no explanation of the grounds and reasons that can be seen as such, if the owner on the registry starts possession with the knowledge of the changed fact, it shall be deemed as an occupation of another owner. If the owner on the registry starts possession with the knowledge of the changed fact, and if the owner continues possession without the knowledge of the change on the registry, it shall not be deemed as the starting point of the new occupation.

However, the Majority Opinion, based on the fact that the second acquisition by prescription is a new legal relationship independent of the first acquisition by prescription, and that the acquisition by prescription can be newly progress by forming a state suitable for the process of prescription, and argues that it is faithful to the legal doctrine of the acquisition by prescription of real estate.

B. In the past, the Supreme Court: (a) premised on the fact that there is a change in the contractual relationship between the nominal owner on the registry at the time of the completion of the acquisition by prescription and the third party on the registry at the time of the completion of the acquisition by prescription, even if the ownership of real estate was changed at any time before the expiration of the acquisition by prescription, the nominal owner on the registry at the time of the completion of the acquisition by prescription is at the time of the completion of the acquisition by prescription so that the third party who was transferred the title of ownership from the nominal owner on the registry at the time of the expiration of the acquisition by reason that he/she is not a party to change in the contractual rights and duties at the time of the completion of the acquisition by prescription; and (b) on the basis that the third party who was transferred the title of ownership from the nominal owner on the registry at the time of the expiration of the acquisition by prescription is

From the viewpoint of the judicial precedents that regard the effect of acquiring the ownership of real estate by a third party as the time of acquiring the ownership of the real estate before or after the completion of prescription, the issue of where the completion of prescription can assert the acquisition of the ownership of the real estate inevitably is closely closely related to the change in the ownership of the real estate, and the starting point of the period of prescription to determine the time of completion of prescription has an important meaning. However, if the parties can arbitrarily choose the starting point of prescription, the parties can make the person who acquired the title of registration after the completion of prescription available as the parties to change in the rights and obligations at the time of completion of prescription, and as a result, the parties asserting the completion of prescription can claim the corresponding legal relationship by claiming the completion of prescription against the third party purchaser at any time without registration and claiming the completion of the prescription (see Supreme Court Decision 76Da487, 488, Jun. 22, 1976). If the basic point of time of prescription continues to be more than the statutory period, it is unreasonable to determine the starting point of prescription as the time of prescription of time when the two begins.

Since then, the Supreme Court held that the completion of the prescriptive acquisition may be asserted by deeming the starting point of time after the former possessor commenced the possession as the starting point even after a 20-year period has elapsed since the former possessor succeeded to the possession of the former possessor if the former possessor is the same during the period of prescriptive acquisition (see, e.g., Supreme Court Decision 97Da8496, 8502, May 12, 1998). This also holds that even if ownership is changed, if the title holder is the same at the end of the period of prescriptive acquisition after the change of ownership, the sum of the period of possession after the change of ownership and the period of one’s own possession shall be 20 years after the lapse of 20 years (see, e.g., Supreme Court Decision 97Da34037, May 12, 1998). All of the above cases also include the above cases where the prescriptive acquisition can be recognized even if the period of prescriptive acquisition is determined by a fixed facility by stating the period of actual possession.

However, the Supreme Court en banc Decision 93Da46360 delivered on March 22, 1994 (hereinafter “the judgment of the Supreme Court en banc Decision”) held that the possessor, whose first acquisition by prescription has been completed, cannot set up against the third party who has acquired the ownership from the previous owner without registering the completion of the acquisition by prescription, but where the first possessor has continuously occupied the ownership at the time of change in ownership and the occupancy period is terminated again from the time of change in ownership, the third party may assert the completion of the acquisition by taking the time of change in ownership as the starting point for the acquisition. According to the previous theory of precedents, the possessor, who was unable to assert the acquisition by prescription from a third party who acquired the ownership after the expiration of the prescription period, occupies the ownership again 20 years from the time of change in ownership, may oppose the completion of the acquisition by prescription. The Supreme Court en banc Decision 93Da46360 delivered on March 22, 194 (hereinafter “the judgment of the Supreme Court en banc Decision”). The original reason for the extinctive prescription system to clarify it to the original purport.

In accordance with the purport of the en banc decision, the majority opinion held that the period of prescription for the second possession is a new legal relationship independent of the period of prescription for the first possession, and that there is no room to interpret the legal principle that can be applied to the period of prescription for the second possession, unlike the cases of the period of prescription for the first possession. Accordingly, the majority opinion stated that the period of prescription for the second possession can be asserted for the completion of the period of prescription for the second possession, even if the period of prescription is 20 years after the registration of the third party without the change of the owner after the registration of the third party, and that the part mentioned that the period of prescription for the second possession can be asserted for the completion of the period of prescription for the second possession is not in line with the basic logic and logic of the en banc decision

Upon the completion of the first acquisition by prescription, the possessor has the right to claim the acquisition by prescription even in the previous possession while continuing the acquisition by prescription (only the first principle as explained in the Dissenting Opinion) and to claim the registration of transfer based on the acquisition by prescription. Therefore, the possessor occupies real estate based on his/her right. However, if a transfer of ownership is made to a third party without registering the completion of the first acquisition by prescription, the status as the first person for the completion of the acquisition by prescription is lost in relation to the third party, and the relationship between the possessor and the owner of the real estate is formed, as in the previous case of the completion of the acquisition by prescription. Thus, deeming the third party’s transfer of ownership as the starting point of the second acquisition by deeming the new period by deeming the acquisition by prescription as the starting point of the acquisition by prescription as the second person’s intention for the acquisition by prescription is natural and natural to the purport of the acquisition by prescription system that allows the person who occupied the real estate in a peaceful and public performance for twenty

The Dissenting Opinion argues that the Supreme Court en banc decision is an exception in that the possessor who neglected the registration of transfer due to the completion of the period of prescription after the completion of the first period of prescription does not need to protect the possessor on the right, but if the third acquisitor who acquired the right after the completion of the first period of prescription does not exercise his right by exercising not only the right to the object but also disposing of it in another way, etc. so that the third acquisitor may expire the second period of prescription, he/she is also a locked person on the right, and if he/she does not exercise his/her right on the other hand, he/she is not unreasonable to protect the possessor on the right. However, considering the legal policy of the Dissenting Opinion presented by the Dissenting Opinion, the Supreme Court en banc Decision that the new legal relationship

The Dissenting Opinion does not answer to the Majority Opinion as to the logical and inevitable reason why a third party who acquired legitimate ownership should be denied the acquisition of ownership, or there is no explanation from the Majority Opinion as to the grounds or reasons for newly deeming the time of change of ownership on the registry as the starting point of the acquisition by prescription in the event the title holder on the registry is changed after the completion of the first acquisition by prescription. However, the purport of the en banc Decision deeming the second acquisition by prescription as a new legal relationship independent from the first acquisition by prescription and a new legal relationship independent from the first one, and the fact that the operation of the acquisition by prescription itself, in which the title holder on the registry at the time of the completion of the acquisition by prescription, is a party to change the rights

C. Meanwhile, the Supreme Court precedents have interpreted that even if the nominal owner on the register changes, the reason alone cannot be deemed as destroying the existence of the possessor’s previous fact-finding status. Thus, even if ownership changes after the completion of the prescriptive acquisition period, such interpretation theory should not change. In other words, the previous possession of the possessor’s real estate continues to lead to a change in ownership in the third party’s future, and thus, it cannot be deemed that a new possession, which is different from the previous possession, has commenced.

However, as seen above, the transfer registration price in the name of a third party can be the starting point of the second acquisition by prescription. As such, it can only be said that part of the first possession period, which continues for a long time from the first possession commenced with the intention of ownership, has the meaning as the requirement fact for the second acquisition by prescription independent of the first acquisition by prescription. In the case where ownership is changed in the name of another person under the possession of real estate in the name of another person, Supreme Court Decision 88Meu26574 Decided September 26, 1989, Supreme Court Decision 88Meu26574 Decided September 26, 199, the possession of real estate owned by the person cannot be deemed as the possession based on the acquisition by prescription, but the possession based on the acquisition

D. Next, the Dissenting Opinion argues that if the possession was commenced with the knowledge of the change of the owner on the registry, it shall be deemed as the possession of the owner on the registry, and if the possession was continued without the knowledge of the change of the owner on the registry, it shall not be deemed as the starting point of new possession. Therefore, this part shall also be examined.

(1) The Dissenting Opinion argues that the possession constitutes the possession of another owner if the possessor was aware of the change of the owner on the register at the starting point of the second acquisition by prescription, but it is not acceptable as it differs from the method of the judgment of the Supreme Court of Korea on whether it is an independent possession.

In accordance with Article 197(1) of the Civil Act, an occupant is presumed to possess as his/her own intent: Provided, That an occupant is not determined by the internal deliberation of the occupant, but by the nature of the title that is the cause of the acquisition, or all other circumstances related to the possession. Thus, the occupant cannot be deemed to have acquired possession on the basis of the title that appears to have no intention to own in its nature, or as having an intention to exercise exclusive control such as his/her own property by excluding another’s ownership. In other words, an occupant cannot be deemed to have possessed possession on the basis of the title that he/she is deemed to have no intention to own, inasmuch as he/she expressed his/her intention to own it, or if he/she did not perform any act that would have naturally been deemed to have been an owner, such presumption is broken if it is proved that the occupant did not have an intention to reject the ownership of another person on the ground that he/she did not have an intention to own the real property without permission. In addition, the Supreme Court en banc Decision 2017Da298597, supra.

The circumstance that the acquisition by transfer in the first place is completed refers to that the former possession was frequently occupied by the occupant, and further, the possessor has the right to claim the acquisition by transfer and to claim the registration of transfer through the completion of the acquisition by transfer. Furthermore, even if the ownership has changed after the completion of the first acquisition by transfer, the possessor’s existing fact-finding status is not destroyed. Therefore, in light of the legal principles on the presumption of possession in the second place and the verification of possession in the second place, unless there are new circumstances to deem that the possessor did not have an intention to refuse the third party’s ownership by deeming it as an external and objective perspective, unlike the previous one after the acquisition by transfer of ownership in the third person’s name, it cannot be readily concluded that the possession in the third party’s name was changed or that the possession in the first place is independently presumed to have been acquired by the occupant, on the sole basis of the reasons for the deliberation that the possessor was aware of the acquisition by transfer of ownership in the third party’s name, even if it appears that the purchaser did not have an intention to acquire the ownership in the third party’s name.

(2) In addition, as seen earlier, the acquisition by prescription for the second time is commenced by the fact that the transfer of ownership by a third party is followed by the effect of the completion of the first time’s acquisition by prescription. Therefore, whether the possessor’s intention or the perception of the possessor as to the fact of registration does not affect the commencement of the second time acquisition by prescription. The Dissenting Opinion is unreasonable to the effect that if the possessor was unaware of the change of ownership on the registry, it cannot proceed with the second time of acquisition by prescription due to the lack of change in possession

E. As seen above, inasmuch as deeming that the new legal relationship, such as the second acquisition from the time of transfer of ownership by a third party, can be formed independently from the completion of the first acquisition by prescription, it would be logically reasonable to view that the second acquisition by prescription should be evaluated independently from the first acquisition by prescription, and that the general legal principle on the completion of the acquisition by prescription also applies to the second acquisition by prescription.

Therefore, even if the title holder is changed again in the process of the second acquisition due to the change in ownership after the completion of the acquisition by prescription, the circumstance that the title holder cannot claim the completion of the second acquisition by prescription shall not be considered in the second acquisition by reason of the change in the title holder. As stated in the Majority Opinion, the general legal doctrine (the second principle as explained in the Dissenting Opinion) that continues to proceed and the new title holder becomes a party to change in the right and duty at the time of the completion of the acquisition by prescription is applied, and it would be reasonable to view that the title holder may claim the completion of the second acquisition by prescription by virtue of the general legal doctrine that the Supreme Court has declared on the acquisition by prescription.

Therefore, I point out that the Dissenting Opinion’s argument that points out the problems as to the legal doctrine of the Majority Opinion is justifiable, and express my concurrence with the Majority Opinion.

6. Concurrence with the Majority by Justice Park Si-hwan

A. As the Dissenting Opinion’s logic that is contrary to the Majority Opinion is contradictory to the Majority Opinion in detail by Justice Kim Young-ran, Justice Lee Hong-hoon, and Justice Jeon Soo-ahn, I would like to follow the Concurrence with the Majority Opinion, and I would like to add one more points regarding the starting point for the period of the second prescriptive acquisition.

The Majority Opinion states that the time of acquisition by a third party is the starting point of the secondary acquisition period according to Supreme Court en banc Decision 93Da46360, but the Dissenting Opinion does not provide any explanation as to the grounds for the second acquisition period, as pointed out by the Dissenting Opinion, and provides a supplementary explanation as to the grounds for the supplementary opinion by Justice Kim Young-ran. The supplementary reasoning is as follows: (a) if there is a third party purchaser who newly acquired the right while the person for whom the first acquisition by prescription has been completed continues to hold possession as it is, then the relationship between the possessor and the owner is formed; (b) it becomes the starting point of the second acquisition by prescription; and (c) such logic is somewhat inconsistent with the logic of determining the starting point of the first acquisition by prescription. The first period of acquisition by prescription is the starting point of the first acquisition by a third party immediately from the starting point of possession to the starting point of the possession, and as such, there is no transfer of ownership to the third party during that period, the new starting point of acquisition by prescription between the first and the second acquisitor.

Although the logic of the so-called dynamic theory that a person who has occupied frequently for a certain period retroactively from a certain point at which he/she intends to claim for the completion of the acquisition by prescription is most consistent with the essence of the system of the acquisition by prescription, the so-called fixed facilities (fixed facilities) mainly consisting of the three and four principles mentioned in the Dissenting Opinion by the precedents and majority theories of our courts, and the legal doctrine has been accepted for a long time and settled, and it is limited to the limit that the legal principles of the dynamic theory will be changed, taking into account the confusion that may arise as a result of the fundamental legal principles of the acquisition by prescription.

In accordance with the calendar theory, it is always possible to claim the acquisition by prescription against the present owner at all times, regardless of a third party’s registration after the completion of the first period of prescription. As seen in this case, the need to discuss the second period of prescription after the completion of the first period of prescription, as seen in this case, but it is inevitable to consider the progress of the second period of acquisition by prescription in order to adjust the relationship with the third party acquisitor who completed the first registration after the completion of the first period of prescription. In order to recognize the progress of the second period of acquisition by prescription, it is inevitable to set a certain point of time as the starting point of the first period of acquisition by prescription in order to find the progress of the second period of acquisition by prescription. However, from the beginning point of view of the first person’s expiration of prescription, it is only necessary to adjust the new interest between the occupant and the real right holder from the time when a change in the real legal relationship occurs, and therefore, it is reasonable to recognize the progress of the second period of acquisition by prescription from the point of view that it is necessary to recognize the progress of the second period of acquisition by prescription.

B. The Dissenting Opinion argues that, under our legal system where the registration system is being amended, the requirements for the acquisition by prescription against real estate should be strictly applied and as far as possible be limited to the extent possible in order to protect the safety of transactions trusted in the registration. However, considering the positive meaning of the acquisition by prescription system, it is not reasonable to suppress the inherent function of the system under our legal system that adopts the acquisition by prescription against real estate by legislation.

The Dissenting Opinion is unacceptable in that: (a) an interpretation contrary to the basic purpose of the system of the system of the system of the system of the system of the acquisition by prescription, i.e., the acquisition by prescription based on the basic admission to restrain the acquisition by prescription, or (b) an interpretation contrary to the basic purpose of the system of the system of the acquisition by prescription, i.e., the difference between the first and the second acquisition by prescription, which would lead to the City/Do intending to restrict the restriction thereof; and (c) in light of the purport of the system of the system

Chief Justice Kim Young-ran (Presiding Justice)