If the ownership transfer registration has been made to a third party before the completion of the acquisition by prescription, and the ownership is restored to the owner at the time of completion of the acquisition by prescription, whether the claim for the acquisition by prescription is made (affirmative)

Even if the period of prescription for the acquisition of ownership by possession of a real estate has expired, if the ownership transfer registration has been made to a third party with respect to such real estate, the possessor cannot oppose the third party by the prescriptive acquisition. However, the possessor does not lose his/her right to claim the transfer registration of ownership due to the prescriptive acquisition against the owner at the time the prescriptive acquisition has expired, but the possessor becomes unable to perform his/her duty to claim the transfer registration of ownership against the possessor at the time of the completion of the prescriptive acquisition. Accordingly, if the ownership is restored to the owner at the time of the completion of the prescriptive acquisition for any reason,

Article 245 of the Civil Act

Supreme Court Decision 65Da157,158 Decided April 13, 1965 (Gong1991, 1339) and Decision 90Da14232 Decided April 9, 1991

[Judgment of the court below]

Defendant 1 and 2 Defendants, et al., Counsel for the defendant-appellant-appellee and one other

Busan High Court Decision 89Na7221 delivered on October 18, 1990

The appeal is dismissed.

The costs of appeal are assessed against the plaintiff.

The Plaintiff’s attorney’s ground of appeal is examined.

1. On the first and second grounds for appeal

According to the reasoning of the judgment below, the court below determined as follows: (a) comprehensively based on the evidences, that the non-party sold the building of this case and its site to Defendant 2 on January 3, 1959 and received the price in full; and (b) around that time, the above defendant extended and reconstructed the building of this case to Defendant 1 and Defendant 3 as stated in its judgment at the time of purchase; and (c) recognized that some of the above defendant leased the above defendant to Defendant 1 and Defendant 3; and (d) as to the remaining portion except the 1,000/6,000 shares inherited from the above non-party, the court below acquired the ownership on January 3, 1979, where 20 years passed since the above defendant occupied the building of this case as his intention on January 3, 1

In comparison with the records, the above fact-finding by the court below is just, and there is no error of law of misconception of facts due to violation of the rules of evidence as alleged in the theory of lawsuit.

If facts are as above, the court below is justified in holding that the above defendant can seek the registration of ownership transfer due to sale and the remaining 5,000/6,000 shares due to prescription acquisition with respect to 1,00/6,000 shares of the plaintiff's inherited shares. Thus, all of the arguments are groundless.

2. On the third ground for appeal

The same shall apply to the theory of lawsuit that the possessor cannot oppose against the third party by the prescriptive acquisition if the ownership transfer registration has been made to a third party with respect to the real estate during the period in which the acquisition of the ownership by possession of the real estate was completed, even if it was not registered.

However, the possessor does not lose his right to claim the transfer of ownership due to the prescriptive acquisition against the owner at the time of the completion of the prescriptive acquisition, but the possessor's obligation to claim the transfer of ownership against the owner at the time of the completion of the prescriptive acquisition is not fulfilled. Accordingly, if the ownership is restored to the owner at the time of the completion of the prescriptive acquisition for any reason, it shall be deemed that the owner can claim the effect of the prescriptive acquisition (see Supreme Court Decision 65Da157, 158, Apr. 13, 1965). The judgment below to the same purport is just and the theory of lawsuit is not adopted as

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

Justices Choi Jae-ho (Presiding Justice)