Point of reckoning extinctive prescription for a purchaser’s right to claim damages

In the case where the buyer cancelled the registration of transfer of ownership in accordance with a final and conclusive judgment by a lawsuit filed by the genuine owner and excluded from the land owner, it shall be deemed that the buyer was aware of the impossibility of transferring ownership at the latest at the time of cancellation of the registration. Therefore, it shall be deemed that the buyer was able to exercise the right

Article 53 of the Local Finance Act, Article 570 of the Civil Act

[Defendant-Appellee] Plaintiff 1 et al., Counsel for defendant-appellee

Attorney Park Jae-il, Counsel for the defendant-appellant

Seoul High Court Decision 76Na3384 decided May 6, 197

The appeal shall be dismissed. The costs of appeal shall be borne by the plaintiff.

The grounds of appeal are examined.

1. According to Article 53 of the Local Finance Act, the extinctive prescription shall expire if the right of a local government or the right to a local government for the purpose of payment of money is not exercised for five years unless otherwise provided in other Acts with respect to the prescription. The purport of this Article is to say that the cause of the payment of money is private law or private law, and that the right of a local government or the right to such organization should be five years, except as otherwise provided in other Acts (see, e.g., Supreme Court Decision 67Da751, Jul. 4, 1967). Thus, the judgment of the court below which applied the extinctive prescription period under Article 53 of the Local Finance Act to the right to claim damages in this case is just and justified, and Article 55 of the Local Finance Act provides that the interruption of prescription period shall not be applied only to the right under public law, and therefore, the theory of Dissent 1 is without merit.

2. In the sale of another person's right, if the seller is unable to acquire it and transfer it to the buyer, the buyer may rescind the contract, and if the buyer was unaware of the fact that the right does not belong to the seller at the time of the contract, the buyer may claim damages.

In such a case, as the buyer is unable to perform his general obligation, he can immediately claim compensation for the benefit of performance without cancelling the contract. Therefore, it is reasonable to view that the buyer can exercise his right of compensation from the time when he becomes aware that it is impossible to transfer.

According to the facts established by the court below, on December 26, 1949, the plaintiff purchased from the defendant about 134 square meters in Dongdaemun-gu Seoul (location omitted) which was the land secured by the recompense for development outlay of the defendant at that time and completed the registration of ownership transfer in its name on November 21, 1967. However, the above land was purchased from the government as it was non-self-owned farmland at the time of implementation of the Farmland Reform Act, which was prior to the purchase by the plaintiff, and the non-party who cultivated the land was legally distributed to the government and completed the repayment on August 23, 1958. The above transfer registration in the plaintiff's name was cancelled on April 17, 1969 by the final judgment of the Seoul Civil District Court 67Da13094 against the plaintiff.

Therefore, the sale of the land between the plaintiff and the defendant is the sale of another person's right, and the registration of transfer of ownership transferred by the plaintiff is cancelled by a final judgment based on the lawsuit filed by the real owner. In such a case, the plaintiff could have been able to exercise his right to claim compensation for damages from the point of time since the plaintiff was aware of the impossibility of transfer at the time of cancellation of the registration at the latest.

In this regard, the judgment of the court below that held that the claim for damages of this case filed after the lapse of five years as stipulated in Article 53 of the Local Finance Act from April 17, 1969 when the registration of ownership transfer was cancelled is justifiable, and it cannot be said that there was any error in the starting point of the statute of limitations, such as the theory of lawsuit, or any misunderstanding of the legal principles as to the impossibility of performance. Thus, the second and third points cannot be adopted.

Therefore, this appeal is without merit and is dismissed, and the costs of the lawsuit are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kang Jin-hee (Presiding Justice)