[1] Whether a person who succeeded to possession from a possessor at the time of the completion of the statute of limitations may directly file a claim for the registration of ownership transfer with the owner of the real estate

[2] In a case where the possessor directly claims the registration of ownership transfer on the ground of the completion of the acquisition by prescription, whether or not the possessor’s exercise of the right to claim the registration of ownership transfer should be clarified

[1] The person who succeeds to the possession of the former possessor only succeeds to the possession itself and the defect, not to succeed to the legal effect of the possession, and thus, the person who acquires the right to claim for ownership transfer registration against the title holder of the real estate due to the completion of the prescription is limited to the possessor at the time of the expiration of the prescription period. As such, the current possessor who succeeds to the possession of the real estate can exercise the right to claim ownership transfer registration against the title holder by the former possessor at the time of the expiration of the prescription period, in order to preserve the right to claim ownership transfer registration against the former possessor, and there is no right

[2] In a case where it is evident that the possessor has the right to claim ownership transfer registration due to the completion of the prescriptive prescription against the nominal owner and that the possessor exercises the right to claim ownership transfer registration against the nominal owner by subrogation of the former possessor is different from the cause of the claim. Thus, it cannot be said that the possessor is erroneous in exercising the right to claim ownership transfer registration due to the completion of the prescriptive prescription on behalf of the former possessor, on the ground that he/she did not examine whether the possessor claims ownership transfer registration due to the completion of the prescriptive prescription against the title holder by subrogation of the former possessor.

[1] Articles 199, 245(1), and 404 of the Civil Act / [2] Article 126 of the Civil Procedure Act

[1] Supreme Court en banc Decision 93Da47745 delivered on March 28, 1995 (Gong1995Sang, 1609), Supreme Court Decision 95Da13753, 13760 delivered on June 16, 1995 (Gong1995Ha, 2510) / [2] Supreme Court Decision 91Da35106 delivered on June 9, 1992 (Gong192, 2116), Supreme Court Decision 94Da13053 delivered on August 12, 1994 (Gong194Ha, 2296), Supreme Court Decision 93Da46209 delivered on November 18, 1994 (Gong195, 47)

Plaintiff (Counterclaim Defendant) (Attorney Park Jong-hoon, Counsel for the plaintiff-appellant)

Defendant 1 (Counterclaim Plaintiff) and five others (Attorney Hong-soo, Counsel for the defendant-appellant)

Seoul District Court Decision 94Na40351, 40368 delivered on April 13, 1995

All appeals are dismissed. The costs of appeal are assessed against each appellant.

1. We examine the Plaintiff’s attorney’s grounds of appeal.

The First Ground for Appeal

A person who succeeds to the possession of the former possessor only succeeds to the possession and the defect itself, and does not succeed to the legal effect of the possession, and thus the person who acquires the right to claim the registration of ownership transfer against the title holder due to the completion of the prescription is limited to the possessor at the time of the expiration of the prescription period. As such, the current possessor who succeeds to the possession of the real estate can exercise the right to claim the registration of ownership transfer against the title holder by the former possessor at the time of the expiration of the prescription period in order to preserve the right to claim the registration of ownership transfer against the former possessor, and there is no right to claim the registration of ownership transfer directly against the former possessor by asserting the effect of the completion of the prescription period (see Supreme Court en banc Decision 93Da4745 delivered on March 28, 1995, 95Da13753, 13760 delivered on June 16, 1995

In the same purport, the court below is just in holding that the plaintiff who succeeded to the possession of the Sub-Section (B) of the land of this case from Non-party 1, the possessor at the time of completion of the acquisition by prescription, cannot file a claim for the registration of ownership transfer due to the acquisition by prescription against the above non-party 1, and it is not erroneous in the misapprehension of legal principles as to the right to claim for the registration of ownership transfer due to the completion of the acquisition by prescription, the succession of possession, and the subrogation right of the creditor.

On the second ground for appeal

tin right refers to a party's right of explanation when it is contradictory or defective to the party's statement or when it is impossible to know the purport of the statement due to the misunderstanding or ignorance of it, or to urge the party to prove it. An act such as questioning or inducing the court to make a new argument that is not intended by the party. (See Supreme Court Decision 91Da35106 delivered on June 9, 192) The plaintiff has a right to claim ownership transfer registration due to the completion of the prescriptive prescription against the defendants, and the plaintiff has a right to claim ownership transfer registration due to the completion of the prescriptive prescription against the defendants, and the above non-party 1 has a right to claim ownership transfer registration due to the completion of the prescriptive prescription against the defendants. Thus, it differs from the claim that the plaintiff's exercise of the right to claim ownership transfer registration against the defendants by subrogation of the above non-party 1. Therefore, in this case, it is evident that the court below's claim against the defendants for ownership transfer registration due to the completion of the prescriptive prescription against the plaintiff's directly.

2. We examine the Defendants’ attorney’s grounds of appeal.

A. Summary of the reasoning of the judgment below

원심은 그 거시 증거를 종합하여, 소외 2는 1962. 2. 28. 이 사건 토지에 접한 (주소 1 생략) 전 3,306㎡를 소외 1에게 매도하였는데, 당시 이 사건 토지는 그 중간에 난 소로(원심판시 별지도면 표시 ㄱ¹, ㄴ¹, ㅅ의 각 점을 순차로 연결한 선)로 인하여 사실상 같은 도면 표시 ㉮부분 740㎡와 ㉯부분 581㎡의 두 부분으로 나누어져 있었고, 그 중 위 ㉯부분은 그에 접한 위 (주소 1 생략) 토지와 경계 구분 없이 사실상 1필지의 토지로 경작되어 왔던 관계로(지적도 상에는 위 양 필지 사이에 (주소 2 생략) 도로가 있어 그 경계를 형성하는 것으로 되어 있으나 실제로는 위 도로마저 위 양 필지와 함께 사실상 1필지의 농지로 경작되어 그 물리적 경계는 존재하지 아니하였다.) 위 소외 2와 소외 1은 위 ㉯부분도 위 (주소 1 생략) 토지의 일부로서 위 매매 목적 토지에 포함되는 것으로 보고 함께 그 점유를 이전하여 그 때부터 이를 점유, 경작하여 온 사실(위 소외 1이 이를 점유, 경작하여 왔다는 취지로 보인다.), 그 후 1983. 2. 7. 위 소외 1은 위 (주소 1 생략) 토지를 원고에게 매도하면서 같은 이유로 위 ㉯부분도 위 (주소 1 생략) 토지의 일부로서 그 매매목적 토지에 포함되는 것으로 보고, 같은 달 21. 위 (주소 1 생략) 토지에 대한 원고 명의의 소유권이전등기를 경료하면서 위 (주소 1 생략) 토지와 함께 그 점유를 이전하여 그 무렵부터 현재까지 원고가 이를 점유, 경작하여 온 사실을 인정한 후, 위 ㉯부분에 대한 위 소외 1의 점유는 소유의 의사로 평온, 공연하게 이루어진 것으로 추정된다고 할 것이므로, 위 소외 1은 위 ㉯부분을 점유하기 시작한 1962. 2. 28.부터 20년이 경과한 1982. 2. 28.에 이르러 당시 이 사건 토지의 소유자인 피고들에 대하여 위 ㉯부분에 관하여 점유취득시효 완성을 원인으로 한 소유권이전등기청구권을 취득하였다 할 것이고, 원고는 그 후 위 소외 1로부터 위 ㉯부분을 매수함으로써 위 소외 1의 소유권이전등기청구권을 대위행사할 수 있는 지위에 있다고 판단하였다.

B. Judgment on the grounds of appeal

As above, the court below determined that the above (2) portion of the above (2) portion was included in the above sale purpose land as part of the above (2) land at the time of sale, and determined that the above (2) portion of the above (2) portion was included in the above sale purpose land as part of the above (2) part of the above (2) land. The court below held that the above (4) portion was purchased from the above non-party 1 as part of the above (2) part of the above (3) land, and that the plaintiff purchased the above (4) portion of the above (4) portion of the above (2) portion of the above (3) portion of the above sale purpose. The court below held that the above non-party 2 and the non-party 1 purchased the above (4) portion of the above (1 omitted) portion of the above (4) portion of the above (2) as part of the above sale purpose land. In light of the records, the court below's determination and determination of the above facts are acceptable, and there is no error in the misapprehension of legal principles as to the point of law, the selection of evidence.

Even if a real right is acquired without registration pursuant to the provisions of law, it is the theory of lawsuit that it could not be disposed of unless it is registered. However, the court below did not decide that Nonparty 1 acquired ownership of the above Sub-Section (B) or that the Plaintiff acquired ownership by purchasing the above sub-Section (B) from the above non-party 1, but it did not decide that the above non-party 1 acquired the right to claim ownership transfer registration on the ground of completion of the prescription period for possession of the above sub-Section (B). Since the plaintiff purchased the above sub-Section (B) from the above non-party 1 in a position that the above non-party 1 can exercise the right to claim ownership transfer registration by purchasing the above sub-

In addition, as seen above, the Plaintiff’s purchase of the above ( Address 1 omitted) land, including the above (B) portion, should be deemed as being above, the Plaintiff’s succession from Nonparty 1 to the above (B) portion on the premise of a different fact cannot be deemed to have succeeded to the above Nonparty 1’s right to claim ownership transfer registration against the above (B) portion. Therefore, the Plaintiff’s assertion that the above Nonparty 1’s right to claim ownership transfer registration is not in a position to exercise the right to claim ownership transfer registration cannot be accepted

3. Therefore, all appeals are dismissed, and the costs of appeal are assessed against each party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Jae-soo (Presiding Justice)