Whether the buyer's right to request for registration is subject to extinctive prescription where the buyer of the immovables takes delivery of the object.

In light of the reason for the existence of the prescription system, if a real estate purchaser takes over an object and takes advantage of it, such purchaser cannot be deemed a locked person on his/her right. Moreover, when comparing the remaining conditions of registration in the name of the seller and the conditions of the purchaser taking over and taking advantage of it, it is necessary to protect the buyer’s use and profit-making condition rather than protecting the remaining registration in the name of the seller. Therefore, it is reasonable to interpret the buyer’s right to claim for registration, unlike other claims,

[Judgment of the court below]

Seoul Metropolitan Government

Seoul High Court Decision 75Na1449 delivered on December 17, 1975

The original judgment is reversed, and the case is remanded to the Seoul High Court.

The grounds of appeal by the Plaintiff’s attorney are examined.

According to the reasoning of the judgment below, the court below rejected the plaintiff's claim for transfer of registration of this case on the ground that the plaintiff purchased the land of this case from Kimpo-gun, where the whole owner of this case was the defendant, and the land was transferred to the defendant's city and acquired it by succession, and completed the registration of ownership transfer under the name of the defendant's name. Thus, the defendant Si presumed that the plaintiff is liable to implement the procedure for transfer of ownership based on the above sale, and the claim for transfer of registration of this case was extinguished by prescription after the lapse of 10 years from the date on which the purchaser's claim for registration of this case was able to exercise his right as the obligatory right. Thus, the plaintiff's claim for transfer of registration of this case was extinguished after the lapse of 10 years since the plaintiff filed the lawsuit of this case on December 26, 1975, since the expiration of the prescription period.

However, since the prescription system maintains social order for a certain period of time and does not exercise its rights, a locked person on the so-called right without legal protection. However, if a purchaser of land or building fails to complete the registration of ownership transfer under his/her own name, the buyer's right to claim for registration is not transferred under our legal system, and under the general principles of the extinctive prescription system, since the buyer's right to claim for registration is merely a obligatory right, and thus, the buyer's right to claim for registration is also affected by the extinctive prescription. However, if the buyer's right to claim for transfer of real estate is divided into two different types of claims and obligations of the parties to the transaction, and thus, the delivery and transfer of the real estate is not a requirement for transfer of real estate to the seller for the purpose of traveling the public notice method of real estate transactions, and if the buyer fails to obtain the delivery and use of the real estate under his/her own name and gains profit from the sale and use of the real estate, and thus the buyer's right to claim for registration cannot be seen as having been restored to the buyer's right to claim for registration under the above law.

The separate opinions of the Supreme Court judges of Lee Young-chul, Dong Dong-ho, Dong-ho, Dong-ho, Dong-ho, Dong-ro and Dong Kim Yong-chul are as follows.

Many opinions state that the buyer's right to claim for registration of transfer of ownership is the obligatory right in the event that the buyer has already received the delivery or surrender of the object, and that the right to claim for registration is not the subject of extinctive prescription in the event that the buyer has already received the delivery or surrender of the object, it can not be the subject of extinctive prescription. However, in our legal system, the above right to claim for registration is not the subject of extinctive prescription in the case where the seller has received the delivery or surrender of the object of the sale, and there is no legal ground for such interpretation. Thus, the above right to claim for registration is both the obligatory right, regardless of whether the buyer has received the delivery or surrender of the object as the performance of the sales contract, and if the buyer has received the delivery or surrender of the object, it should be deemed that the seller has obtained the above duty to claim for registration of transfer of the object, and if the land has been delivered to the Plaintiff by the time of expiration of the extinctive prescription, the court below should have held that there is no special reason to acknowledge the seller's right to claim for registration.

In short, the judgment of the court below is erroneous by failing to exhaust all necessary deliberations, which affected the conclusion of the judgment, and thus, it is consistent with the majority opinion that should reverse the judgment of the court below and remand the case to the court below. However, the reasons for its reasoning are different as above.

The opinions of the judges of the Supreme Court are as follows.

The majority opinion and the above separate opinion state that the right to claim for the registration of ownership transfer, which a purchaser of the same real estate, takes place from the act of the cause of the act of claim, and its nature takes place in writing on the premise that the claim for registration is a claim with the prescription in principle, but the majority opinion states that the right to claim for registration is not subject to extinctive prescription, unlike other claims in light of the nature of the prescription system where the purchaser takes delivery of the subject matter of sale, and the above separate opinion states that the right to claim for registration is naturally subject to extinctive prescription regardless of whether the subject matter of sale is transferred or not, if the purchaser takes over the subject matter of sale, the seller without any special reason approves the existence of the obligation to register for the buyer

However, in the case of a juristic act such as the sale of real estate, it is reasonable to see that the buyer's right to claim for registration against the seller takes place not from the act of claim, which is the cause of the act, but from the agreement between the parties to transfer the ownership of the real estate, the right to claim for registration of ownership transfer naturally from this agreement, because the so-called real right agreement is a real right agreement. Therefore, the nature of the right is close

If the right to claim for registration is considered to be the basis of a real right agreement, at least the right to claim for registration concerning the prescription system can not be the object of extinctive prescription independently.

In this respect, we agree with the majority opinion and the above separate opinion and agree with only the reasons.

Justices Kim Jong-chul (Presiding Justice)