Plaintiff (Attorney Jeong-sung et al., Counsel for the plaintiff-appellant)

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

January 11, 2007

Changwon District Court Decision 2005Da4231 decided May 18, 2006, 2006Kadan1710 decided May 18, 2006

1. All of the Defendant-Counterclaim Plaintiff’s counterclaims filed by the Defendant-Counterclaim Plaintiff and the Defendant-Counterclaim Plaintiff’s claim to be exchanged in the first instance are dismissed.

2. All of the costs of appeal and the costs of lawsuit incurred by a counterclaim that is changed to an exchange in the trial of the party shall be borne by the Defendant-Counterclaim Plaintiff;

1. Purport of claim

The principal lawsuit: The Defendant (Counterclaim Plaintiff; hereinafter the Defendant) shall deliver to the Plaintiff (Counterclaim Defendant; hereinafter the Plaintiff) a part of 54 square meters in the part (B) of the attached Form No. 21, 22, 23, 5, 6, 7, 8, 20, and 21 attached hereto, among the 360 square meters wide (number 1 omitted) Taeyang-si, Samyang-si.

Counterclaim: On February 15, 2002, the Plaintiff performed the procedure for the registration of transfer of ownership on the part (B) of 54 square meters on the ship, which was successively connected with each point of 21, 22, 23, 5, 6, 7, 8, 20, 20 square meters in the attached drawing among the land size of 360 square meters in Samyang-si (number 1 omitted) Seoyang-si (the Defendant requested the performance of the procedure for the registration of transfer of ownership on December 31, 1981, and changed the lawsuit in exchange at the trial as above).

2. Purport of appeal against the principal lawsuit

The judgment of the first instance is revoked. The plaintiff's appeal is dismissed.

A principal lawsuit and a counterclaim shall be deemed simultaneously.

1. Facts of recognition;

The following facts are not disputed between the parties, or may be acknowledged by taking into account the whole purport of the arguments as a result of the survey and appraisal conducted by the non-party 4 of the first instance court, as a result of the first instance court's on-site inspection, and as a whole, there is no dispute between the parties, or as a whole, Gap evidence 2, Gap

A. On February 12, 1982, Non-party 1 purchased 155 square meters from Non-party 5 in Seoyang-dong (number 1 omitted) in Seoyang-si on February 15, 1982, and completed the registration of ownership transfer on February 15, 1982. The above site was combined with 10 square meters in the same (number 3 omitted), 30 square meters in the same (number 4 omitted), 360 square meters in the same (number 5 omitted), and 165 square meters in the same (number 1 omitted), and thereafter, the registration of ownership transfer was completed in sequence in the name of Non-party 2 on March 25, 198, and on September 10, 198.

B. The Defendant owned a lot of 79 square meters wide (number 2 omitted) adjacent to the instant site, and occupied and used a part (B) of 54 square meters in the ship (hereinafter referred to as “land in dispute of this case”) which is successively connected to each point of the attached Form 21, 22, 23, 5, 6, 7, 8, 20, 20 and 21 among the instant site, as a garden.

2. Determination

A. According to the above facts, the defendant is obligated to deliver the land in question to the plaintiff who is the owner of the land in this case, unless there is any assertion or proof as to possessory right of the land in this case.

B. On February 27, 1960, the defendant asserted that the acquisition by prescription for the land of this case was completed on February 15, 1982 under the name of the non-party 1 on the land of this case, since the non-party 3 purchased the land of this case from the non-party 3 on January 1, 1961 that it occupied and used the land of this case as a garden with the knowledge that the land of this case was included in the land of this case. Thus, the acquisition by prescription for the land of this case was completed on January 1, 1981 after 20 years passed since the acquisition by prescription was completed on February 15, 1982 under the name of the non-party 1 on the land of this case, but the acquisition by prescription for the land of this case was completed again on February 15, 200 after the above date was the new point of time. Thus, the plaintiff's claim for the acquisition by prescription for the land of this case was without merit and the plaintiff's defense as to the land of this case.

In the event that a third party purchaser completes the registration of ownership transfer after the completion of the acquisition period, the original possessor continues to possess the real estate, and in the event that the acquisition period is completed again after the change of the owner, the possessor claiming the acquisition period as the starting point of new acquisition. However, even in this case, the registration titleholder should be the same and there is no change in the owner's ownership during the occupancy period (see Supreme Court Decisions 93Da46360, Mar. 22, 1994; 98Da40688, Feb. 12, 1999, etc.). Thus, it is clear that the above evidence and evidence were recorded as 6 and the testimony of Nonparty 6 of the first instance court witness, and that Nonparty 3 did not acquire the above land from Nonparty 1 as the starting point of new acquisition of the land in the name of this case, and it is not clear that Nonparty 1 purchased the land in the name of this case from Nonparty 1, 196.

3. Conclusion

Therefore, the plaintiff's claim of this case is justified, and the judgment of the court of first instance is just, so the defendant's appeal is dismissed, and the defendant's claim of this case changed in exchange from the court of first instance is dismissed as it is without merit (the plaintiff's claim of this case was withdrawn from the exchange change of the lawsuit at the court of first instance on December 31, 1981 due to the expiration of the prescription period, and the judgment of the court of first instance is invalidated). It is so decided as per Disposition.

[Attachment Form 3]

Judges Park Jong-dae (Presiding Judge)