If the transfer registration of ownership made in the name of a third party is invalidated after the completion of the acquisition by prescription, the denial of the claim for the acquisition by prescription against the third party.

The prescriptive acquisitor due to the possession of real estate has the right to claim the ownership transfer registration against the owner at the time of completion of the prescriptive acquisition and can not claim the ownership transfer registration against the third party who acquired the ownership of real estate by completing the ownership transfer registration prior to the registration. However, this is solely on the premise that the registration in the name of the third party is legitimate. If the registration in the name of the third party is null and void, it may be asserted against the same person. Therefore, as the right to claim the ownership transfer registration in the name of the third party at the time of completion of the prescriptive acquisition, which is the right to claim the ownership transfer registration for the cause null

Articles 186 and 245(1) of the Civil Act

Plaintiff Kim Sung-ro, Counsel for the plaintiff-appellant

Defendant 1 and six others

Jeonju District Court Decision 84Na330 delivered on October 10, 1985

The judgment of the court below is reversed, and the case is remanded to the Jeonju District Court Panel Division.

The grounds of appeal No. 1 by the Plaintiff’s attorney are examined.

1. According to the reasoning of the judgment below, the court below rejected the plaintiff's claim that the plaintiff acquired the right to claim for ownership transfer registration of the land of this case due to the expiration of the acquisition period due to possession on December 5, 1966 by the deceased non-party 1, who is the father of the plaintiff, and the plaintiff succeeded to the above right, and since the ground of invalidity registration for sale after the death of the deceased non-party 2 as of January 17, 1983 has been completed by the deceased non-party 2, who is the title holder at the time of the completion of the acquisition period, as of January 17, 1983, the above registration was revoked, and the plaintiff's claim that the deceased non-party 2, the heir of the above deceased non-party 2, would seek the execution of the ownership transfer registration procedure for the land of this case due to the completion of the acquisition period due to the completion of the acquisition period, as alleged by the plaintiff.

2. However, since the prescriptive acquisition by possession of real estate under Article 245(1) of the Civil Act only acquires ownership by registering it, and only has the right to claim the ownership transfer registration against the owner at the time of the completion of the prescriptive acquisition, it cannot be asserted as to the third party who acquired the ownership of the real estate by completing the ownership transfer registration prior to the completion of the prescriptive acquisition registration (see, e.g., Supreme Court Decision 1980Da92129, 2130, Sept. 24, 1980). However, this is based on the premise that the registration in the name of the third party is legitimate and valid (see, e.g., Supreme Court Decision 79Da2129, 2130, Sept. 24, 1980). Thus, if the registration in the name of the third party is null and void, the person who has the right to claim the ownership transfer registration can oppose the third party. Therefore, the third party's right to claim the ownership transfer registration by subrogation,

Therefore, the court below should have deliberated and determined whether the prescriptive acquisition of the land in this case has been completed and whether the registration of Defendant 1 with respect to the land in this case has been null and void, but it rejected the Plaintiff’s claim as seen above on the sole ground that the registration in the above third party was completed without any deliberation and determination thereon. The court below erred in the misapprehension of legal principles as to the prescriptive acquisition of real estate due to possession and the registration, or failing to exhaust all necessary deliberations, and thus, the argument is justified.

3. Therefore, the judgment of the court below shall be reversed without making a judgment on the remainder of the issues, and the case shall be remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating judges

Justices Kim Jong-sik (Presiding Justice)