Whether the immediately preceding possessor who lost possession of real estate by delivering it to the present possessor can file a claim for the registration of transfer of ownership by asserting the completion of prescriptive acquisition at the time of possession against the owner on the register (negative)

In a case where the possession of real estate is succeeded to the present possessor through a number of persons, even if the 20-year period has elapsed by the succession to the possession at the time of possession, and the prescriptive acquisition has been completed by the present possessor, as long as the present possessor loses possession by delivering it to the present possessor, the immediately preceding possessor cannot file a claim for the registration of ownership transfer with the owner on the registry by asserting the completion of the prescriptive acquisition. This is because the reason why the immediately preceding possessor lost possession was sold to the present possessor. This is the same even if the immediately preceding possessor is liable for the registration of ownership transfer to the present possessor.

Article 245 of the Civil Act

[Judgment of the court below]

Attorney Park Jong-chul, et al., Counsel for the defendant-appellant

Busan District Court Decision 91Na1254 delivered on July 26, 1991

The appeal is dismissed.

The costs of appeal are assessed against the plaintiff.

We examine the grounds of appeal.

On the first ground for appeal

According to the facts established by the court below, since non-party 1 commenced possession on November 10, 1965, he succeeded to the plaintiff's possession through the defendant 1 of the court of first instance. Thus, even if the defendant 1 of the court of first instance possessed the land of this case after 20 years have passed since the non-party 1 commenced possession, it shall not be allowed to claim the completion of the acquisition by himself against the defendant who is the owner on the registry and file a claim for the registration of transfer of ownership as long as the acquisition by prescription has been completed since he lost possession by the plaintiff, as long as the non-party 1 of the court of first instance lost possession. The reason why the defendant 1 of the court of first instance lost possession was sold to the plaintiff, and the same applies to the case where defendant 1 of the court of first instance is liable to transfer ownership to the plaintiff.

Therefore, the judgment of the court below to the same purport is just and there is no error in the misapprehension of the legal principle of prescriptive acquisition.

On the second ground for appeal

According to the records, the plaintiff and the defendant 1 of the first instance court as co-defendant, and the defendant is the above defendant 1 of the first instance court, and it is clear that the plaintiff filed a claim for the registration of ownership transfer based on the completion of the prescriptive prescription on November 10, 1985, and the defendant 1 of the first instance court as to the plaintiff on July 26, 1989. Thus, the court below's decision is not erroneous on the ground that the plaintiff did not ask the defendant for the registration of ownership transfer based on the completion of the prescriptive prescription on his own. There is no reason to discuss.

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

Justices Lee Jae-chul (Presiding Justice)