The case holding that even if the exclusion period under the latter part of Article 146 of the Civil Code cannot be deemed to have been interrupted or suspended, it cannot be deemed to be against the good faith principle

The case holding that even if the exclusion period under the latter part of Article 146 of the Civil Code cannot be deemed to have been interrupted or suspended, it cannot be deemed to be against the principle of good faith.

Articles 2 and 146 of the Civil Act

Supreme Court Decision 92Da21180 Decided August 18, 1992 (Gong1992, 2759) Supreme Court Decision 2001Da52339, 52346 Decided November 13, 2001

Plaintiff 1 and one other (Attorney Kim Jong-woo, Counsel for the plaintiff-appellant)

Republic of Korea (Attorney Han Man-chul et al., Counsel for defendant-appellant)

National Agricultural Engineer Association and two others (Attorneys Lee Han-sung et al., Counsel for the plaintiff-appellant)

Hyundai Automobile Co., Ltd. (Law Firm Sam, Attorneys Kim Young-chul et al., Counsel for the plaintiff-appellant)

Supreme Court Decision 98Da7421 delivered on November 27, 1998

Seoul High Court Decision 98Na66477 delivered on January 18, 2001

The part of the lower judgment against the Defendant against the Republic of Korea is reversed, and that part of the case is remanded to the Seoul High Court. The Plaintiffs’ appeal is dismissed. The costs of appeal against the dismissed appeal are assessed against each

1. We examine Defendant Republic of Korea’s grounds for appeal.

A. The court below held that the defendant Republic of Korea acquired res judicata in an unlawful manner by preparing a protocol of compromise prior to a lawsuit, which provides that the attorney-at-law of the non-party who has not lawfully granted the right of representation from the plaintiffs shall be the legal representative of the plaintiffs to complete the registration of ownership transfer of the real estate of this case under the name of the defendant Republic of Korea. However, in a case where the country which should guarantee the citizen's property rights seizes the citizen's property rights by coercion, and further obtains res judicata in an unlawful manner, even during the existence of res judicata, it is not permissible in light of the principle of good faith, which is the major principle applied in the interpretation of the law, to prevent restitution. Thus, in this case, the exclusion period of 10 years from the date of a legal act under the latter part of Article 146 of the Civil Act, should begin to run from December 23, 1996 when the judgment of quasi-deliberation case of this case becomes final and conclusive, and thus the above exclusion period has been cancelled on September 26, 1997.

B. However, the right to cancel the latter part of Article 146 of the Civil Code shall be exercised within 10 years from the date of the juristic act, and the progress of the exclusion period is interrupted or suspended on the ground that there are such reasons as the court below decided, and the limitation period cannot be deemed to run from the date of the final judgment of quasi-deliberation lawsuit. Such interpretation and application with respect to the latter part of Article 146 of the Civil Code

According to the records, since there is no evidence to deem that the plaintiffs revoked the above gift act from June 17, 1980 to the expiration of ten years from June 17, 1980, the plaintiffs' right to revoke the above gift was extinguished due to the expiration of the exclusion period.

Therefore, the judgment of the court below which judged otherwise is erroneous in the misunderstanding of the legal principles as to the exclusion period under the latter part of Article 146 of the Civil Act, which affected the conclusion of the judgment.

2. We examine the plaintiffs' grounds of appeal.

The lower court determined that, on the premise that the Plaintiffs’ contract for donation to Defendant Republic of Korea was lawfully revoked, there is no evidence to acknowledge that, at the time when Defendant National Agricultural Technician Association, Defendant 3, and Defendant 4 completed the registration of ownership transfer of the instant real estate from Defendant Republic of Korea, the said contract was declared by the coercion of Defendant Republic of Korea, and that the said contract cannot be asserted against the said Defendants by the revocation of the said contract.

According to the records, the above donation contract between the plaintiffs and the defendant Republic of Korea is valid as the plaintiffs did not cancel the period of exclusion under the latter part of Article 146 of the Civil Code until the expiration of the period of exclusion under the latter part of Article 146 of the Civil Code. Accordingly, since the transfer registration of ownership in the name of the defendant Republic of Korea conforms to the substantive relationship, the transfer registration of ownership in the name of the defendant Republic of Korea is also valid.

The judgment of the court below is justified in its conclusion notwithstanding the method of explaining its reasoning. Therefore, the plaintiffs' ground of appeal on this part is without merit.

3. Therefore, the part of the judgment of the court below against the defendant is reversed, and that part of the case is remanded to the court below for a new trial and determination. The plaintiffs' appeal is dismissed as it is without merit. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Son Ji-yol (Presiding Justice)