The claim for prescriptive acquisition against a person who caused the transfer registration before the completion of the prescriptive acquisition but completed the transfer registration after the completion of the prescriptive acquisition (negative)

Even if the acquisition by prescription of possession of real estate has been completed, if the transfer registration of ownership has been completed to a third party with respect to the real estate without registration, the possessor cannot oppose the third party. In such cases, the same shall also apply even if the third party's transfer registration has not been completed before the acquisition by prescription of the possessor.

Article 245 of the Civil Act

Supreme Court Decision 76Da242 delivered on March 22, 197, 93Da22883 delivered on September 28, 1993 (Gong1993Ha, 2965), Supreme Court Decision 93Da22883 delivered on September 28, 1993 (Gong1993Ha, 2965), Supreme Court Decision 95Da9624, 9631 delivered on September 26, 1995 (Gong195Ha, 3523), Supreme Court Decision 95Da9624, 9631 delivered on September 26, 1995 (Gong195Ha, 3523), and Supreme Court Decision 95Da9631 delivered on September 26, 1995 (Gong195Ha, 195Ha, 395Da39839, Apr. 195)

Plaintiff 1 et al. and 10 others, the deceased Nonparty 1’s taking over litigation

Defendant 1 and one other, who is the taking over of the lawsuit by the deceased Nonparty 2

Defendant (Appointed Party) 3 and 3 others (Attorney Song Man-chul, Counsel for the defendant-appellant)

Supreme Court Decision 93Da27444 Delivered on April 29, 1994

Gwangju High Court Decision 94Na3697 delivered on September 5, 1997

The part of the lower judgment against Plaintiffs 1, 2, 3, 4, 5, 6, 7, and 8 and the part against Defendants 1, 2, and 4 of Plaintiffs 10, 9, and 11, and the part against the Defendants other than Nonparty 3, 4, 5, and 6, and 7, and the part against Defendants 10, 9, and 11 against Defendants 1, 4, 5, and 3 against Nonparty 11 are reversed, and that part of the case is remanded to the Gwangju High Court.

We examine the grounds of appeal.

The lower court determined that the Defendants (including the appointed party and the appointed party; hereinafter the same shall apply) is liable to implement the registration procedure for transfer of ownership on the grounds of completion of the acquisition by prescription on December 28, 1978, on the grounds that the acquisition by prescription on the part of possession of each of the Defendants’ co-ownership of the specific parts was completed on December 28, 1978, on the grounds that the Plaintiffs occupied each of the specific parts as indicated in the holding from around December 28, 1958, from around 608 to 608,443 square meters of forest land and field as owned by the intent of ownership.

However, even if the acquisition by prescription for real estate has expired, the possessor cannot oppose the third party if the ownership transfer registration for the real estate has been completed against the third party without the registration. Thus, even according to the reasoning of the judgment of the court below, since the land of this case was unregistered and the registration of ownership transfer in the name of the defendant was completed on October 7, 1989 on the same day as the registration of ownership transfer in the name of the non-party Republic of Korea after the expiration of the period for the acquisition by prescription, the defendants cannot assert the completion of the acquisition by prescription against the defendants as the third party, who completed the registration of ownership transfer after the expiration of the period for the acquisition by prescription, and even if the cause of the transfer registration by the defendants was transferred on October 17, 1949 (see, e.g., Supreme Court Decisions 93Da22883, Sep. 28, 1993; 93Da55685, Mar. 22, 1994).

Therefore, without further proceeding to decide on the remaining grounds of appeal, the part concerning Plaintiffs 1, 2, 3, 4, 5, 6, 7, and 8 and the part concerning Defendants 10, 9, and 11, Defendant 2, Defendant 4 (Appointed Party) and Defendant 5, 6, Nonparty 3, Nonparty 5, Nonparty 5, Nonparty 6, and Nonparty 7, and the part against the remaining Defendants other than Defendants 10, Defendant 4, Defendant 5 (Appointed Party) and Nonparty 3 against Defendants 10, 9, and 11 are reversed, and this part of the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Cho Chang-hun (Presiding Justice)