[1] Where the owner of real estate changes during the period of possession, whether the claimant for the prescriptive acquisition may assert the completion of prescription on the ground that he/she arbitrarily selected the starting point of counting or occupied for at least 20 years retroactively (negative)

[2] In a case where possession is succeeded in succession, whether a person who asserts the completion of the prescriptive acquisition has the right to assert only his/her own possession or to assert both his/her own possession and that of the former possessor (affirmative), and in a case where the former possessor’s possession is claimed, whether he/she has the right to select a person who asserts it as well as the latter’s possession (affirmative) / Whether such a legal principle applies only when there is no change in the owner’s possession (negative)

[3] Whether a person who acquired possessory right through inheritance can assert possession without the possession of the inheritee (negative in principle)

[1] Article 245 of the Civil Act / [2] Articles 199 and 245 of the Civil Act / [3] Articles 193, 199, and 245 of the Civil Act

[1] Supreme Court Decision 94Da39987 Decided May 23, 1995 (Gong1995Ha, 2228), Supreme Court Decision 2012Da17479 Decided March 20, 2015 / [2] Supreme Court Decision 97Da56822 Decided April 10, 1998 (Gong1998Sang, 1304) / [3] Supreme Court Decision 92Da22602, 22619 Decided September 222, 1992 (Gong192, 2979), Supreme Court Decision 2007Da61410, 61427 Decided December 13, 2007

Plaintiff (Attorney Lee Il-il et al., Counsel for the plaintiff-appellant)

Defendant (Attorney Park Jin-jin, Counsel for defendant-appellant)

Jeonju District Court Decision 2018Na13472 Decided October 24, 2019

The judgment below is reversed, and the case is remanded to the Jeonju District Court.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. When calculating the period of prescriptive acquisition, where the owner of the relevant real estate changes during the period of possession, the claimant may not assert the completion of prescriptive acquisition on the ground that he/she arbitrarily selected the starting point of reckoning or occupied for at least 20 years retroactively, and the court recognizes the starting point of real possession as recognized by the litigation data without going through the allegations of the parties, and determine the propriety of the claim for prescriptive acquisition by putting it on the basis of the aforementioned determination (see, e.g., Supreme Court Decisions 94Da3987, May 23, 1995; 2012Da17479, Mar. 20, 2015; 2012Da17479, Jun. 20, 2015; 2017Da17479, supra. 2097, if the person asserts the completion of prescriptive acquisition by his/her own authority, as long as he/she asserts it, he/she does not change the possessor’s right of possession by 2970.

2. Review of the reasoning of the lower judgment and the record reveals the following facts.

가. 익산시 ○○면 △△리 □□□-◇ 대 899㎡(이하 ‘분할 전 토지’라 한다)에 관하여, ① 1920. 10. 11. ‘같은 달 7. 매매’를 원인으로 소외 1 등 5인의 공유자 앞으로 소유권이전등기가 마쳐졌고, ② 1983. 11. 14. ‘1971. 5. 6. 매매’를 원인으로 (문중명 생략) 앞으로 소유권이전등기가 마쳐졌으며, ③ 2010. 10. 11. ‘같은 달 4. 매매’를 원인으로 피고 앞으로 소유권이전등기가 마쳐졌다. 그 후 위 분할 전 토지는 2013. 9. 30.경 같은 리 □□□-☆ 대 429㎡(이하 ‘이 사건 토지’라 한다)와 같은 리 □□□-◇ 대 470㎡(이하 ‘□□□-◇ 토지’라 한다)로 분할되었다.

나. 한편 원고의 아버지 소외 2와 피고의 아버지 소외 3은 1965. 10. 13.경 분할 전 토지를 매수하여 소외 2는 이 사건 토지 부분을, 소외 3은 □□□-◇ 토지 부분을 각 구분하여 점유하면서 그 각 점유 부분 지상에 건축된 주택에서 거주해왔다. 위 매수에 따른 소유권이전등기는 마치지 않았다.

C. The non-party 2 died on March 21, 1994, and the plaintiff was transferred with the right to possess the land of this case as his inheritor, and on April 16, 1994, the plaintiff completed the moving-in report on the house of this case and resided therein.

3. Examining the above facts in light of the legal principles as seen earlier, the Plaintiff acquired the right to possess the land in this case as his heir upon the death of Nonparty 2 on March 21, 1994. Thus, in this case where the Plaintiff did not assert that the Plaintiff commenced his own possession with a new title, and there is no proof, the Plaintiff cannot assert possession of only the Plaintiff regardless of the deceased Nonparty 2.

Therefore, the starting point of the prescriptive acquisition of the instant land is October 13, 1965, which can be deemed that the deceased non-party 2 commenced possession with the intention to own the instant land when purchasing it, and thus, the prescriptive acquisition is completed on October 13, 1985 after the lapse of 20 years thereafter. However, as long as the Defendant acquired the ownership by completing the registration of transfer of ownership on October 11, 201 by completing the registration of transfer of ownership under the name of the deceased non-party 2 or the Plaintiff’s transfer of ownership on the instant land on October 11, 2010, the Plaintiff cannot assert the completion of the prescriptive acquisition as the Defendant.

Nevertheless, under the premise that the Plaintiff may assert possession of only the Plaintiff, regardless of the deceased Nonparty 2’s possession, the lower court determined that the acquisition by prescription on the instant land was completed on April 16, 201, when 20 years elapsed since April 16, 1994 that the Plaintiff selected as the starting point of the acquisition by prescription, and accepted the Plaintiff’s claim seeking the registration of ownership transfer on the ground of the completion of the acquisition by prescription on the instant land. In so doing, the lower court erred by misapprehending the legal doctrine on the starting point of the acquisition by inheritance and thereby adversely affecting

4. 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 Lee Ki-taik (Presiding Justice)