Where there is a third party who has made registration of preservation of ownership in accordance with the former Act on Special Measures for the Registration, etc. of Transfer of Ownership of Real Estate after the expiration of the period of acquisition by the possessor, whether the possessor may oppose against the registered titleholder by prescription.

A person who has completed registration of preservation of ownership of another person’s land pursuant to the Act on Special Measures for the Registration, etc. of Transfer of Ownership of Real Estate shall be the owner only by the registration of preservation, and if the period of the acquisition by a person who occupies the land has expired before the registration is completed, the registered titleholder shall be the new interested person after the completion of the prescription by the possessor. Thus, the possessor cannot oppose the registered titleholder by the completion

Article 245(1) of the Civil Act, Article 6 of the former Act on Special Measures for the Registration, etc. of Ownership of Real Estate (Act No. 4502, Nov. 30, 1992), Article 6

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Domin, Attorneys Park Jong-soo et al., Counsel for plaintiff-appellant)

Plaintiff

Defendant

Jeju District Court Decision 96Na1849 delivered on August 20, 1997

The judgment of the court below is reversed and the case is remanded to Jeju District Court.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. According to the reasoning of the judgment below, on May 23, 1964, Nonparty 1, the Plaintiff’s mother, based on its evidence, purchased the land of this case called “diversh” from Nonparty 2, who is the owner of the land of this case on May 23, 1964, and installed the deceased Nonparty 3’s tomb and tombstones, and occupied and managed them together with his family members, and donated the land of this case to the Plaintiff on or around December 1969, the time when the Plaintiff died, while the Plaintiff donated the land of this case to the Plaintiff on or around the day of death, the Plaintiff did not raise any objection to the registration of transfer of the above land of this case from Nonparty 1 and the Plaintiff’s possession and management of the land of this case on May 23, 1964, and the Defendant did not have the duty of registration of transfer of the ownership of this case on or around the day when the acquisition of ownership was completed by Nonparty 1 and the Plaintiff on April 16, 1995.

2. However, a person who has completed registration of preservation of ownership of another person's land pursuant to the Act on Special Measures for the Registration, etc. of Transfer of Ownership of Real Estate shall be the owner only by the registration of preservation, and if the period of the acquisition by a person occupying the land has expired before the registration is completed, the registered titleholder shall be the new interested person after the expiration of the prescription period. Thus, the possessor cannot oppose the registered titleholder upon the completion of the prescription period.

However, according to the facts acknowledged by the court below, the defendant is a person whose registration of preservation of ownership was completed pursuant to the Act on Special Measures after the acquisition by prescription of the land of this case was completed, and according to the records, the land of this case was originally under the name of the deceased non-party 4, and the defendant has not been registered so far, and the registration of preservation of ownership was completed pursuant to the Act on Special Measures as above. Thus, barring any special circumstance, the defendant is a new interested party after the completion of prescription, and the plaintiff cannot oppose the defendant, who is the registered titleholder, due to

Therefore, the court below should have judged the propriety of the plaintiff's claim after a further examination as to whether the defendant is a new interested person after the completion of prescription. However, the court below's order to register the transfer of ownership based on the completion of prescriptive acquisition to the defendant is erroneous in the incomplete hearing or by misapprehending the legal principles on the prescriptive acquisition, which affected the conclusion of the judgment. Therefore, the ground of appeal containing the same purport is with merit.

3. Therefore, without examining the remaining grounds of appeal, the judgment of the court below shall be reversed, 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 Jeong Jong-ho (Presiding Justice)