In the event that reorganization proceedings are terminated at the time when the possessor claims the completion of the acquisition by transfer, even though the reorganization proceedings under the former Company Reorganization Act have been commenced for the title holder of the real estate in possession during the period of acquisition by transfer, whether the possessor may claim the completion of the acquisition by using the voluntary point of time during the period of possession including possession for which he/she claims the succession as the starting point

Even if there was a fact that an administrator is appointed after the commencement of reorganization proceedings under the former Company Reorganization Act (repealed by Article 2 of the Addenda to the Debtor Rehabilitation and Bankruptcy Act, Act No. 7248 of March 31, 2005), for the title holder of the real estate in possession during the period of acquisition, the circumstance that the title holder was appointed under reorganization proceedings at the time when the possessor asserts the completion of the acquisition by prescription does not constitute a change in the title holder of the registration for the real estate in possession during the period of acquisition by prescription. Therefore, the possessor may claim the completion of the acquisition by using the voluntary time point of time during the period of possession, including possession, for which he/she claims his/her succession,

Articles 199(1) and 245(1) of the Civil Act

New Distribution First Rebuilding Housing Association (Attorney regular number and two others, Counsel for the plaintiff-appellant)

Han New Public Co., Ltd. (Law Firm Barun, Attorneys Lee Won-il et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2014Na3575 decided September 3, 2014

The part of the lower judgment against the Plaintiff regarding the ancillary claim is reversed, and that part of the case is remanded to the Seoul High Court. The Plaintiff’s appeal as to the primary claim and the Defendant’s appeal are dismissed

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. As to the ground of appeal on the primary claim

For reasons indicated in its holding, the lower court rejected the Plaintiff’s lawsuit on the Plaintiff’s primary claim, on the ground that, around December 1976, the right to claim for ownership transfer registration, which was based on sale, constitutes a reorganization claim arising before the commencement of reorganization proceedings against the Defendant, was not reported, and the same applies to the Plaintiff, even if the Plaintiff received the right to claim ownership transfer registration, which was based on the sale, directly or before the transfer thereof, on the ground that the right to claim ownership transfer registration, which was based on the sale, was unlawful, inasmuch as it is the same as the Plaintiff’s claim on the Plaintiff’s primary claim is unlawful.

Examining the record in light of the relevant legal principles, the above determination by the court below is just, and contrary to the allegations in the grounds of appeal, there were no errors by misapprehending the legal principles on the scope of reorganization claims forfeited by company reorganization procedures

2. As to the ground of appeal on the conjunctive claim

A. As to the Plaintiff’s ground of appeal

(1) According to the reasoning of the judgment below and the record, the defendant acquired the ownership of 76 pieces of land outside Gangnam-gu Seoul ( Address 2 omitted) on July 10, 1976, and completed the sale contract around December 4, 1977, and completed the apartment of this case on the land before reorganization. The defendant acquired the ownership transfer registration of 20 years from 20 years to 3 years from 10 days from 20 days from 30 days from 1977 to 30 days from 20 days from 197, and entered the ownership transfer registration of the land of this case on the land of this case on the ground that he acquired the ownership of 3 years from 20 years from 20 days from 3 years from 20 days from 3 days from 1977 to 196 days from 3 days from 20 days from 3 days from 196 days from 16 days from 16 days from 20 days from 3 days from 17 days from 207 days from 207 days from 17 days from 3 days from 20.

Based on such factual basis, the lower court recognized the starting point of the possession of each of the instant apartment units as the starting point of the acquisition by prescription under the premise that, in the event that the reorganization proceedings commenced against the Defendant during the period of acquisition by prescription and the administrator is appointed, the starting point of the acquisition by prescription cannot be selected at the voluntary time during the period of possession by any occupant. The Plaintiff succeeding to the possession of each of the sectional owners of the instant apartment units from August 2, 2013 to August 2, 2093, which is alleged as the completion date of the acquisition by prescription, can only claim the starting point of possession by the sectional owner, who is the possessor at the time of August 2, 1993, as the starting point of the acquisition by prescription (see, e.g., the part in the attached Table), and rejected the Plaintiff’s arbitrary starting point as the starting point of the acquisition by prescription, which serves as the basis for determining whether the acquisition by prescription is completed by each of the sectional owners of the instant apartment units, and rejected the Plaintiff’s transfer registration as to the remaining part of ownership before the acquisition by prescription period was completed.

(2) If the title holder is the same as to the real estate continuously in possession during the period of acquisition, it is sufficient to deem the starting point of the acquisition by prescription as at the time when the period can be claimed for the completion of the acquisition by deeming it as at where the starting point of the acquisition by prescription is located, and if the total period of one’s possession has elapsed 20 years, the former possessor’s voluntary starting point after the commencement of possession shall be deemed the starting point (see, e.g., Supreme Court Decision 97Da8496, 8502, May 12, 1998). Furthermore, even if the title holder asserts that the reorganization procedure under Article 248 of the former Company Reorganization Act (amended by Act No. 7248, Mar. 31, 2005; hereinafter “former Company Reorganization Act”), if the possessor asserts that the acquisition by prescription has already been completed from the starting point of the acquisition by prescription to the title holder, the change in title holder’s acquisition does not constitute a voluntary starting point for the acquisition by prescription.

Examining the facts in light of the aforementioned legal principles, the title holder of the instant share does not change from the Defendant for the period of prescriptive acquisition until August 2, 2013, which the Plaintiff asserts the completion of the prescriptive acquisition. However, on December 16, 1997, the company’s corporate reorganization procedure commenced with respect to the Defendant and appointment was completed on November 21, 2002. As such, the Plaintiff, who claimed the completion of the prescriptive acquisition with respect to the instant share, may choose the time of voluntary acquisition as the starting point for the period of acquisition, including the possession claiming his succession. Meanwhile, the starting point of the prescriptive acquisition is not a major fact directly necessary for the determination of legal effect, but merely an indirect fact, the court is merely bound by the Plaintiff’s assertion, and thus, the time of possession can be recognized by the litigation data (see, e.g., Supreme Court Decisions 86Meu1625, Feb. 24, 198; 200Da3829, Nov. 27, 1992).

Nevertheless, on the grounds indicated in its reasoning as seen earlier, the lower court rejected all the claim for ownership transfer registration on the share of 685 households of the instant apartment complex on the ground of the commencement of acquisition by prescription on the premise that, in the event that the reorganization proceedings commenced against the Defendant during the period of acquisition by prescription and an administrator is appointed, the commencement time of possession, which serves as the starting point of acquisition by prescription, cannot be selected as the voluntary starting point during the period of possession by any occupant. In so doing, the lower court erred by misapprehending the legal doctrine on the calculation of the starting point of acquisition by prescription, thereby adversely affecting the conclusion of the judgment.

B. As to the Defendant’s grounds of appeal

(1) As to the grounds of appeal Nos. 1 and 3

(A) On the grounds indicated in the foregoing reasoning, the lower court rejected the Defendant’s assertion that the Defendant was exempted from liability on the part of the share of 45 households of the instant apartment on the ground that the Defendant is obligated to implement the registration procedure for transfer based on the completion of the prescriptive acquisition on the date indicated in the “the date of the expiration of the prescription” in the attached Table on the present situation list, and that the Plaintiff’s claim for transfer of ownership based on the completion of the prescriptive acquisition was not reported as a reorganization claim, on December 16, 1997, which was decided to commence reorganization proceedings against the Defendant on December 16, 199, and the prescriptive acquisition

The judgment of the court below, which accepted the plaintiff's request, recognized the starting point which serves as the basis for determining whether to complete the prescriptive acquisition with respect to the share of 45 households as the date indicated in the [Attachment] List on the Status quo as the date indicated in August 2, 1993, and rejected the defendant's claim on the premise that the prescriptive acquisition has been completed on the date indicated in the above status list on the date, is erroneous in light of the legal principles as seen earlier. However, as long as the plaintiff acquired the right to claim for ownership transfer registration on August 2, 2013 for the share of the above 45 households on the ground that the right to claim for ownership transfer registration was completed, and the defendant's ground of appeal that the above right to claim for ownership transfer registration was exempted on the ground that it was not reported as a reorganization claim, the judgment of the court below is legitimate in its conclusion,

(B) In addition, the Defendant alleged that there was a violation of the principle of pleading and omission of judgment as to the allegation in the occupancy phase. However, examining the reasoning of the lower judgment in light of the record, the lower judgment did not err as otherwise alleged.

(2) Regarding ground of appeal No. 2

For the reasons indicated in its holding, the lower court rejected the Defendant’s assertion that there is no evidence to acknowledge the Defendant’s assertion that the sectional owners of the instant apartment and the Plaintiff did not possess the instant share as the intention to own the instant apartment, and rather, the Plaintiff and the sectional owners who succeeded to the Plaintiff believed that the instant share was included or would be included in the share of the site of the instant apartment for exclusive ownership in accordance with the sales contract and the transfer contract before the sales contract and the transfer and takeover

Examining the record in light of the relevant legal principles, the said determination by the lower court is justifiable, and contrary to what is alleged in the grounds of appeal, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, misapprehending the legal doctrine on

3. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal by the Plaintiff, the part against the Plaintiff as to the conjunctive claim of the lower judgment is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. The appeal regarding the Plaintiff’s primary claim and the Defendant’s appeal are all dismissed. It is so decided as per Disposition by the assent

Justices Park Poe-young (Presiding Justice)