[1] Whether the possessor may oppose the provisional disposition holder in a case where the possessor acquired a favorable judgment in the lawsuit on the merits of provisional disposition and completed the registration of ownership transfer in accordance with a final and conclusive judgment, on the real estate for which the prohibition of disposal by a third party was imposed prior to the completion of the acquisition by prescription (negative)

[2] In a case where the registration of ownership by the title holder at the time of the completion of the acquisition by prescription is null and void, and the title holder of the provisional disposition is the real owner of the real estate at the time of the completion of the acquisition by prescription, and the right to preserve the provisional disposition is the right to claim the cancellation of ownership based on ownership or the right to claim the registration of transfer for restoration of real name, whether the right holder of the provisional disposition who restored the title of the real estate by provisional disposition, claims that the registration of ownership transfer based on the completion of the acquisition by prescription conflicts with the disposition

[1] Article 245 (1) of the Civil Code / [2] Article 245 (1) of the Civil Code

Republic of Korea (Law Firm Sea, Attorneys Lee Du-hwan et al., Counsel for the plaintiff-appellant)

Defendant 1 and one other (Law Firm Gyeong & Yang, Attorneys Kim Da-hee et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2009Na120711 decided August 20, 2010

All appeals are dismissed. The costs of appeal are assessed against the Defendants.

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

1. According to Article 245(1) of the Civil Act, even if the acquisition by prescription for the possession of real estate has been completed, ownership shall be acquired only by filing a claim for registration for the acquisition of ownership, but also by filing for registration, not immediately becoming effective. Therefore, if the possessor of the real estate, for which the prohibition of disposal by a third party was taken after the completion of the acquisition by prescription, transferred the ownership registration on the ground of the completion of the acquisition by prescription. If the possessor of the right of provisional disposition, who received a favorable judgment in the lawsuit on the merits of the provisional disposition prohibiting disposal and then registered the ownership transfer in accordance with the final and conclusive judgment, the possessor cannot set up against the provisional disposition owner who received the provisional disposition

Meanwhile, if the ownership registration of the title holder at the time of the completion of the acquisition by prescription is null and void, and the title holder of the provisional disposition at the time of the completion of the acquisition by prescription is the real owner of the real estate at the time of the completion of the acquisition by prescription, and the right to the provisional disposition is the right to preserve the real estate at the time of the completion of the acquisition by prescription and the right to request the registration of ownership transfer for the restoration of the title holder’s ownership, the provisional disposition holder who restores the title of the real estate based on the provisional disposition is the party to the claim for ownership transfer registration based on the completion of the acquisition by prescription. As such, the right holder of the provisional disposition cannot deny the effect of ownership acquisition by asserting that the ownership transfer registration based on the completion of the acquisition by prescription conflicts with the prohibition of his/her disposal.

2. A. According to the reasoning of the lower judgment, the lower court acknowledged the following facts by comprehensively taking account of the adopted evidence.

① On April 3, 1963, Nonparty 2 made a registration of ownership preservation on the said land on the land, which was the land under the circumstances of Nonparty 1, and on April 3, 1963, the land was divided, and part of which was 1,157 square meters (hereinafter “instant land”).

② On October 12, 2005, a provisional disposition of prohibition of disposal, which claims for ownership transfer registration on the ground of the right to be preserved, against Defendant 1 and the obligee’s right to claim ownership transfer registration on the ground of title recovery, was registered. On February 20, 2006, the Plaintiff completed the registration of ownership transfer on the land of this case on December 21, 198.

③ On June 7, 1931, Nonparty 1 died and succeeded to Nonparty 3’s property. Nonparty 3 died on October 7, 1931 and succeeded to Nonparty 4’s property. Nonparty 4, the head of which was Nonparty 4, a male, died on January 8, 1997, and Defendant 1 and Nonparty 5 jointly succeeded to Nonparty 4’s property. Meanwhile, Nonparty 2 died on September 26, 200, and the heir was the wife Nonparty 6, Nonparty 7, 8, 9, 10, 11, and 12 (hereinafter “Nonindicted 2”).

④ Defendant 1 and Nonparty 2’s heir of Nonparty 2 and the Plaintiff selected as the Defendant filed a lawsuit for ownership transfer registration on the ground of the restoration of the true name in Suwon District Court Branch 2005Kadan28715, which became final and conclusive around that time, on August 14, 2007, Defendant 1, who succeeded to Nonparty 1, who is the name of the circumstance, in succession to Nonparty 1, is the legitimate owner of the 1/2 shares out of the instant land, on the ground that the registration of ownership transfer by Nonparty 1 was null and void, and Defendant 1, who is the name of the circumstance, is the legitimate owner of the 1/2 shares out of the instant land. Of the instant land, Nonparty 6, as to the 1/10 shares, was sentenced to the judgment that “The 1/10 shares of the instant land, Nonparty 7, 8, 9, 10, 111, and 12, respectively,

⑤ Based on the above final judgment on March 7, 2008, Defendant 1 completed the registration of ownership transfer based on the recovery of real name with respect to 1/2 shares (the aggregate of shares in favor of Nonparty 2’s inheritors) out of the instant land, following the registration of ownership transfer based on payment in kind on April 28, 2008 by Defendant 2.

④ The Plaintiff purchased the instant land from Nonparty 2 on August 30, 1968 in order to use it as an expressway site and possessed the instant land as an expressway site from December 21, 1968 to December 21, 1968.

B. (1) The lower court determined as follows based on the foregoing factual basis.

Unless there exist special circumstances, the Plaintiff, who occupied the instant land from December 21, 1968 to December 21, 198, is presumed to have occupied the instant land in peace and openly with its own will. Thus, the Plaintiff’s prescriptive acquisition period for the instant land was completed on December 21, 198, barring any special circumstance. Although Defendant 1’s provisional disposition registration for the prohibition of disposal on one-half portion of the instant land was made before the Plaintiff’s registration, the Plaintiff may claim the completion of the prescriptive acquisition against Nonparty 1, the genuine owner at the time of the completion of the prescriptive acquisition against the Plaintiff

Therefore, the registration of ownership transfer on February 20, 206, which was based on the completion of the prescriptive acquisition, is valid in accordance with the substantive relationship of the plaintiff, and thus, the plaintiff acquired ownership of the land in this case. After that, the registration of ownership transfer made by defendant 1 on the premise that defendant 1 is the owner of 1/2 share out of the land in this case and the registration of ownership transfer by defendant 2, which was made based on the premise that he is the owner of 1/2 share out of the land in this case, is the registration of invalidity against the plaintiff'

(2) In light of the above legal principles, the above determination by the court below is just, and it did not err by misapprehending the legal principles on registration that conforms to the validity of the provisional disposition prohibiting disposition and the substantive relationship.

3. Therefore, all appeals are dismissed, and the 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 Park Poe-young (Presiding Justice)