In a case where a possessor loses possession after acquiring the right to claim ownership transfer registration due to the expiration of the acquisition period, whether the right to claim ownership transfer registration already acquired is extinguished (negative in principle)

Article 245(1) of the Civil Act

Supreme Court en banc Decision 93Da47745 delivered on March 28, 1995 (Gong1995Sang, 1609)

Kimcheon-si (Attorney Park Young-soo, Counsel for the defendant-appellant)

Defendant (Law Firm TelviS, Attorneys Choi Won-ro, Counsel for the defendant-appellant)

Daegu District Court Decision 2015Na300972 Decided August 13, 2015

The part of the lower judgment against the Plaintiff regarding the conjunctive claim is reversed, and that part of the case is remanded to the Daegu District Court. The remainder of the appeal is dismissed.

The grounds of appeal are examined.

1. As to the main claim

The plaintiff filed an appeal against the main claim of the judgment below. However, there is no indication of the grounds for appeal in the petition of appeal and no statement of the grounds for appeal is found in the appellate brief.

2. As to the conjunctive claim

A person who has occupied real estate in peace and openly and openly with an intention to own it for twenty (20) years shall acquire the right to claim the transfer registration of ownership against the owner of the real estate in accordance with Article 245(1) of the Civil Act, and as long as the possessor acquired the right to claim the transfer registration once the period of acquisition expires, even if he lost possession thereafter, the right to claim the transfer registration of ownership is not extinguished unless it can be seen as a waiver of the prescription interest (see Supreme Court en banc Decision 93Da4745 delivered on March 28, 1995, etc.)

According to the reasoning of the judgment below, the court below rejected the plaintiff's assertion that the acquisition by prescription of possession of the land in the dispute in this case has been completed on the ground that there is insufficient evidence to support the fact that each part of the "bb" and "cream (hereinafter "the land in this case") among the land in this case was designated as a clearance zone, but the plaintiff has been continuously occupying the land in this case for not less than 20 years.

However, according to the records, the photographic image taken on September 2009, along with a road adjacent to the land in the dispute in this case, can be seen that the land in this case was a slope adjacent to the road and did not have been filled up at the same height as the road. In view of such circumstances, the possibility that the Plaintiff might have occupied the land in this case around January 2009 for the period of prescription for the acquisition by possession was completed cannot be ruled out.

Nevertheless, the lower court did not review and determine whether the Plaintiff occupied the land in question during the period from January 23, 1989 to January 23, 2009, and did not merely reject the Plaintiff’s conjunctive claim on the sole ground that the Plaintiff did not occupy the land in question at the time of the closing of argument in the lower court. In so doing, the lower court erred by misapprehending the legal doctrine on the prescription for the acquisition of possession, thereby adversely affecting the conclusion of the judgment. The allegation contained in the grounds of appeal on this point is with merit.

3. Conclusion

The part of the lower judgment against the Plaintiff regarding the conjunctive claim is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. The remainder of the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Ki-taik (Presiding Justice)