[1] Whether the third party who acquired ownership after the completion of the prescriptive acquisition has asserted for prescriptive acquisition (negative)

[2] Whether one of the successors of the owner after the completion of the prescriptive acquisition constitutes a new interested person where the registration of ownership transfer is completed due to the donation from the owner (affirmative with qualification)

[3] Requirements for the owner's act of disposal of real estate as a tort after the completion of the acquisition by prescription, and the validity of the third party's act of disposal where the third party actively participated in such act (negative)

[1] Even if the period of prescription for the possession of real estate has expired, the possessor may not oppose the third party when the transfer registration for the ownership of the real estate has been completed to the third party without the registration.

[2] Where a person among inheritors completes the registration of ownership transfer by receiving a donation from the decedent who is the owner, the registered titleholder shall not be deemed a person who is in the same position as the previous owner in relation to the possessor, unless there are special circumstances such as where the donation can be deemed the same as the consultation and division of the inherited property substantially, and shall be deemed a new interested person after the completion

[3] The real estate owner, who is a real estate titleholder, before claiming the prescriptive acquisition or claiming the ownership transfer registration after the completion of the prescriptive acquisition period, cannot know the fact of prescriptive acquisition, barring any special circumstances, and thus, even if the real estate owner disposed of it to a third party, tort cannot be established. However, if the real estate owner is aware of the completion of the prescriptive acquisition, if the real estate owner lacks the obligation of ownership transfer registration due to the completion of the prescriptive acquisition by transferring the ownership transfer registration to a third party, thereby causing damage to the claimant for the completion of the prescriptive acquisition, it shall constitute a tort. If a third party who acquired the real estate actively participated in such illegal act by the real estate owner, it shall

[1] Article 245 of the Civil Act / [2] Article 245 of the Civil Act / [3] Articles 103, 245, and 750 of the Civil Act

[1] [2] Supreme Court Decision 93Da22883 delivered on September 28, 1993 (Gong1993Ha, 2965) / [1] Supreme Court Decision 89Meu1305 delivered on April 9, 1991 (Gong1991, 1339) Supreme Court Decision 92Da21258 delivered on September 25, 1992 (Gong1992, 297), Supreme Court Decision 92Da968, 9975 delivered on December 11, 1992 (Gong1993, 4444) / [2] Supreme Court Decision 92Da26871 delivered on October 13, 199 (Gong1992, 31394 delivered on April 198, 197) / [39Da979497 delivered on April 19, 197

Plaintiff 1 and eight others (Attorney Cho Byung-soo, Counsel for the plaintiff-appellant)

Defendant (Law Firm General Law Office, Attorneys Yoon Jong-sung et al., Counsel for the defendant-appellant)

Chuncheon District Court Decision 96Na1010 delivered on October 17, 1997

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

We examine the Plaintiffs’ grounds of appeal.

1. On the first ground for appeal

According to the records, the court below's rejection of the plaintiffs' assertion that the registration of ownership on the whole land of this case before subdivision from the deceased non-party 1 around February 1987 was based on the donation of the whole land of this case before subdivision to the defendant is based on the premise that the plaintiffs should divide the part of the land of this case (A) in the judgment of the court below among the land of this case, and that the registration was made as such for convenience or the registration on the above part (A) shall be deemed null and void, is just, and there is no violation of the rules of evidence such as the theory of lawsuit and there

2. On the second ground for appeal

Even if the acquisition by prescription of possession of real estate has been completed, the possessor may not oppose the third party when the ownership transfer registration of the real estate has been completed with respect to the third party (see Supreme Court Decision 93Da22883 delivered on September 28, 1993). In a case where one of the successors has completed the registration of ownership transfer by receiving a donation from the decedent, who is the owner, the former owner, unless there are special circumstances, such as where the donation can be deemed to be identical with the actual division of inherited property, the former owner shall not be deemed to be a person in the same position as the former owner, and shall be deemed to be a new interested party after the completion of the acquisition by prescription (see Supreme Court Decision 97Da34013 delivered on November 11, 1997).

In light of the above legal principles and the records, the circumstance of the plaintiffs' assertion that the deceased non-party 1's donation to the defendant is insufficient to view it as a real inheritance and there is no other evidence to acknowledge it. The court below's decision is just and it is not erroneous in the misapprehension of legal principles as to the acquisition of prescription, etc. and in the violation of the rules of evidence as to it

3. On the third ground for appeal

Since the real estate owner, who is the real estate owner, is not aware of the fact of prescriptive acquisition after the prescriptive acquisition has been completed or before filing a claim for the registration of prescriptive acquisition, barring any special circumstance, the tort shall not be established even if the real estate owner disposed of it to a third party. If the real estate owner is aware of the completion of the prescriptive acquisition, if the real estate owner lacks the obligation of ownership transfer registration due to the completion of the prescriptive acquisition by transfer of ownership transfer to a third party and causes damage to the person who asserts the completion of the prescriptive acquisition, the tort shall be constituted. If a third party who acquired the real estate actively takes part in such illegal act by the real estate owner, such act shall be deemed null and void as contrary to social order (see, e.g., Supreme Court Decisions 96Da2399, Sept. 6, 1996; 92Da47892, Feb. 9, 1993).

In light of the above legal principles and the records, the circumstance that Nonparty 1 and Nonparty 2, the deceased Nonparty 1’s legal representative of the Defendant, were registered of ownership transfer on the ground of donation to the Defendant, who was 18 years old since the completion of the deceased Nonparty 3’s prescriptive acquisition of the land in this case, was not the deceased Nonparty 1 and Nonparty 2, but the deceased Nonparty 1 and Nonparty 2, who was merely the deceased Nonparty 1’s long-term losses, cannot be concluded to have donated the land in this case to the Defendant in order to prevent the Plaintiff’s assertion of ownership or avoid the obligation to transfer ownership transfer on the ground of the completion of the prescriptive acquisition of the land in this case, and it is insufficient to recognize this only by the result of the personal examination with the Plaintiff 2, and there is no other evidence to acknowledge this, the court below’s rejection of the Plaintiffs’ preliminary claim against the Defendant to cancel the ownership transfer registration on the remaining portion of the land in this case except for the Defendant’s inheritance shares

4. 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 Shin Sung-sung (Presiding Justice)