A. Whether the person who bears the burden of proving the non-performance of the possession at the time of the acquisition of the registry (=the principal)

B. In the sale of real estate, where the buyer fails to verify the nominal owner or to verify whether the seller has the authority to dispose of the real estate in the registry, whether the buyer was negligent in the commencement of possession (affirmative), and whether the seller is converted into a non-performance without fault in the event that the seller acquired the ownership of the real estate at the time of possession or acquisition (negative)

(a) In the case of the acquisition by prescription of the registry, it is necessary that there was no negligence in the commencement of possession, and the burden of proof shall be borne by the claimant;

B. In the sale of real estate, in a case where the title holder on the registry is a third party who is not a seller, there is a reason to suspect the seller's authority in light of the transactional concept. Thus, the buyer cannot be deemed to have commenced possession without negligence even if he takes possession of real estate in good faith without confirming the actual state of the title holder on the registry or confirming whether the seller has the authority to dispose of the real estate. In addition, if the above negligence existed at the time of the acquisition of possession by purchasing the real estate, the seller shall not be deemed to have taken possession without

(a)Article 245 of the Civil Procedure Act. Article 261 of the Civil Procedure Act

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Han-sung, Attorneys Park Jae-young and 2 others, Counsel for plaintiff-appellant)

[Judgment of the court below]

Defendant-Appellee et al., Counsel for defendant-appellee

Seoul Civil District Court Decision 91Na28824 delivered on June 10, 1992

The judgment of the court below is reversed and the case is remanded to the Panel Division of the Seoul Civil Procedure District Court.

We examine the grounds of appeal.

1. According to the reasoning of the judgment below, the court below found that the defendant purchased the real estate of this case through the non-party 2 from the non-party 1 to the non-party 2 around March 5, 1980, and found the fact that the owner was registered as the plaintiff on the registry, and held the above non-party 2. The Dong presented the approval of the non-party 2 as to the real estate of this case, which was owned by himself and did not make the registration of transfer. Further, the non-party 3, the non-party 4, and the non-party 5, who had been living in the house on the land of this case, confirmed that the above land was owned by the non-party 2, and concluded the sales contract by confirming that the above land was owned by the non-party 2, as well as the fact that the ownership transfer registration was completed in the above non-party 2's name on March 5, 1980, on the premise that the ownership transfer registration was completed as of March 5, 1980.

2. The acquisition by prescription of the registry requires that there was no negligence in the commencement of possession, and the claimant bears the burden of proof as to the above negligence (see Supreme Court Decision 91Da27082 delivered on November 12, 191). Meanwhile, in the sale of real estate, there are circumstances to suspect the seller's authority in light of the transactional concept in the case where the holder of a title on the registry is a third party other than the seller. Thus, the buyer cannot be deemed to have commenced possession without negligence even if he acquired the real estate in good faith without confirming the truth of the owner on the registry or confirming whether the seller has the authority to dispose of the real estate (see Supreme Court Decision 85Meu71 delivered on February 25, 1986). In addition, if the above negligence was purchased and acquired the real estate at the time of the acquisition of possession, it cannot be said that the seller thereafter acquired the real estate without negligence even if the seller acquired it.

However, according to the records, with regard to the fact that the defendant confirmed that the above non-party 2 had the authority to dispose of the contract of this case with the above non-party 2, the witness of the first instance trial and the defendant asked the above non-party 2, who is the seller, to the non-party 6, the above non-party 2 had the right to dispose of the contract of this case. Thus, during the testimony of the non-party 6, the above non-party 2 was acquired without the transfer of his own name. Thus, the non-party 3 and the non-party 4, who is the tenant of the house located on the land of this case, and the non-party 2, who is the tenant of the house located on the land of this case, asked the above non-party 2's statement to the non-party 2 at the time, and there was only a testimony that the above non-party 2 had concluded the contract with the above non-party 2, and there was no evidence that the defendant presented to the defendant

In addition, even though the above non-party 2 did not directly complete the registration of ownership transfer by the plaintiff even though there are no special circumstances, it can be known that the above non-party 2 obtained a false letter of guarantee and a written confirmation using the Act on Special Measures for the Registration, etc. of Ownership of Real Estate, and completed the registration of ownership transfer to the defendant

In light of the above circumstances, the court below should have deliberated on what the documents presented by the above non-party 2 to the defendant and what is the specific contents that the non-party 2 said non-party 2 said that the words of the above non-party 2 were true, and judged whether such circumstances can be deemed to have fulfilled the same care as that of confirming the truth to the owner of the above non-party 2 on the registry, and should have judged whether the defendant was negligent in believing that the above non-party 2 was the owner of the above non-party 2. However, the court below did not reach this point and recognized that the sale and purchase of the above real estate of this case and the possession thereof were bona fide and without fault based on the mere vague testimony, based on the fact that the above non-party 2 was not the owner of the above witness and there was an error of law by misunderstanding the legal principles as to the non-party 2's negligence as the requirement

Therefore, the judgment of the court below is reversed and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.