[1] In a case where the ownership transfer registration has been completed to a third party before the completion of the prescription period, and thereafter the ownership transfer registration has been completed to the heir of the owner at the time of the completion of the prescription period, whether the effect of the prescription can be asserted (negative with qualification)

[2] Where there is a change in the nominal owner during the period of possession of real estate, the starting point of the period of prescription (=the starting point of possession) and whether it can be asserted against a third party acquisitor who completed the registration of ownership transfer after the completion of the period of prescription (negative)

[3] In a case where the owner changes after the completion of the acquisition by real estate, but the period of the acquisition by real estate again is completed, whether the registration titleholder may assert the completion of the acquisition by real estate (affirmative), and whether the registration titleholder shall be the same and the owner shall not change during the period of possession (affirmative)

[1] Even in cases where the possessor becomes unable to oppose the third party by the prescriptive acquisition because of the registration of transfer of ownership in the name of a third party with respect to the real estate from the completion of the prescription period, the possessor does not lose the right to claim the registration of transfer of ownership due to the prescriptive acquisition against the owner at the time of the completion of the prescription period, but merely becomes unable to perform the right to claim the registration of transfer of ownership due to the prescriptive acquisition. Thus, if the ownership is restored to the owner at the time of the completion of the prescription period for any reason thereafter, the owner may claim the effect of the prescriptive acquisition. However, if the ownership is restored to the owner at the time of the completion of the prescription period, not to recover the ownership temporarily lost by the original owner after the completion of the prescription period, but if the heir completes the registration of transfer of ownership, it cannot be deemed as the person in the same position as the previous owner in relation to the possessor, and as a new interested person after the completion of the prescription period, it cannot be asserted

[2] The starting point for calculating the starting point for the acquisition by prescription of real estate shall, in principle, be the starting point for the acquisition by prescription, unless the nominal owner of the real estate is the same and there is no change in the title, the starting point for the acquisition by prescription shall be the starting point. The starting point for the acquisition by prescription shall not be the starting point for the parties, and if a third party purchaser completes the registration of ownership transfer after the completion of the acquisition by prescription,

[3] Even if a third party purchaser completes the registration of ownership transfer after the completion of the acquisition period, the original possessor continues to possess, and if the period of acquisition is completed again by taking the time of change into the new starting point, the possessor who claims the acquisition period as the starting point for the new starting point for the acquisition, may claim the completion of the acquisition period by using the time of change of ownership as the new starting point for the acquisition period, but even in this case, the registration titleholder should be the same and there

[1] Article 245 (1) of the Civil Act / [2] Article 245 (1) of the Civil Act / [3] Article 245 (1) of the Civil Act

[1] [2] Supreme Court Decision 93Da22883 delivered on September 28, 1993 (Gong1993Ha, 2965), Supreme Court Decision 97Da56495 delivered on April 10, 1998 (Gong1998Sang, 1301) / [1] Supreme Court Decision 90Da1425 delivered on June 25, 1991 (Gong1991, 19999), Supreme Court Decision 93Da42016 delivered on February 8, 1994 (Gong1994, 107) / [2] Supreme Court Decision 76Da487, 488 delivered on June 22, 197 (Gong197, 194, 194; Supreme Court Decision 93Da939498 delivered on April 19, 194) 97

Plaintiff

Defendant

Gwangju High Court Decision 97Na2466 delivered on July 24, 1998

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined.

1. As to the misapprehension of legal principles as to registration, incomplete hearing, and omission of judgment

Even in cases where the possessor becomes unable to oppose the acquisition by prescription since a transfer of ownership in the name of a third party has been made in the name of the third party with respect to the real estate without the completion of the acquisition by prescription, the possessor does not lose the right to claim the transfer of ownership due to the acquisition by prescription against the owner at the time of the completion of the acquisition by prescription, but merely becomes unable to perform the obligation to claim the transfer of ownership against the possessor, and thus, the owner may assert the effect of the acquisition by prescription if the ownership is restored to the owner at the time of the completion of the acquisition by prescription for any reason thereafter (see Supreme Court Decisions 90Da1425, Jun. 25, 1991; 93Da42016, Feb. 8, 1994). However, in cases where the owner was not temporarily deprived of the ownership after the completion of the acquisition by prescription, and the heir’s registration can not be deemed as being in the same position as the previous owner and can not be deemed as being in a new position as the owner.

Examining the reasoning of the judgment below in light of the aforementioned legal principles and records, the court below is justified in holding that the defendant constitutes not simply the deceased non-party 2 but the new interested party after the completion of the prescriptive acquisition, and thus, the plaintiff cannot be asserted against the defendant due to the completion of the prescriptive acquisition for the land in the dispute in this case, on the ground that the acquisition by the deceased non-party 1 for the land in this case was completed, and the transfer of ownership in the name of the defendant 2 and the new interested party after the completion of the prescriptive acquisition, and there is no error of law that affected the conclusion of the judgment by misapprehending the legal principles as to the validity of the ownership transfer registration in the name of the defendant and the new interested party after the completion of the prescriptive acquisition, or incomplete deliberation or omission of

2. As to the misapprehension of legal principles as to the prescriptive acquisition

The starting point for calculating the starting point of the prescriptive acquisition of real estate is, in principle, the starting point of the acquisition of real estate unless the nominal owner of the real estate is the same and there is no change therein, the starting point is the starting point of the acquisition, and the parties cannot arbitrarily choose the starting point (see, e.g., Supreme Court Decisions 76Da487, 488, Jun. 22, 1976; 93Da7358, 7365, Oct. 26, 1993; 93Da7358, 7365, Oct. 26, 1993). If a third party purchaser completes the registration of ownership transfer after the starting point of the prescriptive acquisition, the prescriptive acquisition cannot be asserted against the said person (see, e.g., Supreme Court en banc Decision 93Da2883, Sept. 28, 1993; 97Da56495, Apr. 10, 1998).

Examining the reasoning of the judgment below in light of the above legal principles, inasmuch as the time when the ownership transfer registration with Nonparty 2 was made for the land in dispute in this case after the expiration of the prescription period, and the ownership transfer registration with Nonparty 2 was made in the name of the defendant again before the expiration of the twenty-year period of possession, the decision of the court below that the plaintiff cannot be deemed as the initial date of the acquisition of the ownership in the name of Nonparty 2 at will, is justifiable, and there is no error of law by misunderstanding the legal principles as to the acquisition by prescription and the registration, which affected the conclusion of the judgment. The grounds of appeal as to this point and the supplemental grounds of appeal are not acceptable.

3. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the plaintiff-Appellant. It is so decided as per Disposition by the assent of all Justices who reviewed the appeal.

Justices Jeong Jong-ho (Presiding Justice)