[1] Whether the right to claim for transfer of ownership due to completion of prescription is extinguished where possession is lost after the expiration of the period of prescription

[2] Whether the res judicata effect of the previous suit is violated in a case where the party against whom the claim for cancellation of registration of ownership preservation became final and conclusive files a registration of ownership transfer on the ground of the completion of the prescriptive prescription before the closing

[1] Even if the possessor lost possession after the expiration of the period of prescriptive acquisition, the right to claim ownership transfer registration already acquired due to the completion of the period of prescriptive acquisition shall not be extinguished unless the loss of possession is deemed to have waived the prescriptive benefit.

[2] If Gap's judgment against Eul was rendered against Eul on the ground that Eul's registration of preservation of ownership in the name of Eul was a false guarantee and an invalidation registered on the land before subdivision under the Act on Special Measures for the Registration, etc. of Real Estate Ownership, and the judgment against Eul became final and conclusive, the subject matter of the lawsuit alleged by Gap is the existence of the right to claim cancellation of the registration of preservation of ownership on the ground that the registration of preservation of ownership completed in Eul's name is null and void. Although the subject matter of the lawsuit is the subject matter of the lawsuit of the subsequent lawsuit, if Eul claims for the registration of transfer of ownership on the same real estate, the subject matter of the lawsuit is different from that of the claim, and if the subject matter of the lawsuit is the existence of the right to claim the registration of preservation of ownership on the land before subdivision under the Act on Special Measures for the Registration, etc. of Transfer of Ownership of Real Estate, the subject matter of the lawsuit at the prior suit and the subject matter of the lawsuit was registered on the basis that the registration of preservation of ownership was registered in accordance with the substantive relationship. From this point of view, the subject matter of lawsuit cannot be seen.

[1] Article 245 (1) of the Civil Code / [2] Article 202 (1) of the Civil Procedure Act

[1] Supreme Court en banc Decision 92Da14083 decided Nov. 13, 1992 (Gong1991, 93), Supreme Court Decision 93Da4745 decided Mar. 28, 1995 (Gong1995Sang, 1609), Supreme Court Decision 71Da2353 decided Dec. 28, 197 (No. 199-3, 215), Supreme Court Decision 84Da2132 decided Mar. 10, 197 (Gong1987, 621), Supreme Court Decision 93Da39394 decided Nov. 13, 1994 (Gong1987, 621), Supreme Court Decision 94Da37745 decided Nov. 14, 1994; Supreme Court Decision 93Da37594 decided Nov. 36, 195 (No. 1994)

Plaintiff (Attorney White-il, Counsel for plaintiff-appellant)

Defendant (Attorney Yoon Young-young et al., Counsel for the defendant-appellant)

Daegu District Court Decision 94Na895 delivered on July 8, 1994

All appeals are dismissed. The costs of appeal are assessed against each appellant.

The grounds of appeal are examined.

1. Plaintiff’s ground of appeal

A. According to the reasoning of the judgment below, the court below found that the above land was owned by Nonparty 1 and the above 1,983m2 (hereinafter referred to as "land prior to subdivision") on May 30, 1918, and the above non-party 1 died on February 7, 1928, and the non-party 2, an heir of Australia, solely inherited it, and the above non-party 2 died on September 2, 1947, and the defendant, who was the heir of Australia, owned the above land on February 21, 190, owned the above 1,10m2 (hereinafter referred to as "the above land of this case"), and completed registration of ownership transfer on March 28, 190 by dividing the above land under the name of the defendant 1, the non-party 1 and the non-party 3, who owned the above 7m2 (hereinafter referred to as "non-party 1 and the part of the land of this case, which were owned by the plaintiff, as part of the above 9m2).

B. Even if the possessor loses possession after the expiration of the period of prescriptive acquisition, the right to claim for ownership transfer registration is not extinguished unless it is recognized that the loss of possession had been abandoned after the expiration of the period of prescriptive acquisition (see, e.g., Supreme Court Decision 88Meu3618, Apr. 25, 1989; Supreme Court Decision 90Da25352, Nov. 13, 1990; Supreme Court en banc Decision 93Da4745, Mar. 28, 1995; Supreme Court Decision 93Da4745, Mar. 3, 195). However, according to the above facts of the judgment of the court below, the above part of the land was not included in the object of the sales contract between the plaintiff and the non-party association, but it cannot be seen that the right to claim ownership transfer registration of the above part of the land was extinguished by the expiration of the period of prescriptive acquisition due to the expiration of the period of extinctive prescription (see, e.g., Supreme Court Decision 913Da194).

However, in full view of the purport of the oral argument as to the statement No. 1 (Written Agreement), the defendant, on Jan. 5, 1990, agreed on Jan. 5, 190 between the plaintiff and the defendant that the plaintiff would not raise an objection against the remaining land as to the transfer of ownership in the land actually cultivated at the time of division. As recognized by the court below, it is clear that the land of the above part (C) is already used as the parking lot of the non-party union at the time of the preparation of the above written agreement, and it is obvious that the plaintiff does not fall under the "land actually cultivated" among the land before division. Thus, the plaintiff should be deemed to have waived the benefit of the completion of the prescriptive acquisition of the above part (C) and therefore, the court below's decision that the plaintiff waived the benefit of the completion of the prescriptive acquisition of the above part (C). Therefore, it is justified in its conclusion that this error does not affect the conclusion of the judgment. Therefore, the ground of appeal assigning this error is not acceptable.

2. As to the Defendant’s ground of appeal

A. As to the ground of appeal No. 1 by Defendant Yoon-young, Counsel for the defendant-appellant

According to the records, it is clear that the judgment against the plaintiff of this case was rendered and confirmed as it is on the ground that the registration of preservation of ownership in the name of the plaintiff of this case was made on the land before subdivision under the Act on Special Measures for the Registration, etc. of Real Estate Ownership, on the ground that the plaintiff's false guarantee certificate and the registration of invalidation made based on the confirmation document. The subject matter of this case asserted by the defendant is the existence of the right to claim cancellation of the registration of preservation of ownership on the ground that the registration of preservation of ownership made in the name of the plaintiff of this case is null and void. The subject matter of this case in the subsequent suit is the subject matter of lawsuit against the plaintiff of this case, and the subject matter of this case is the subject matter of lawsuit against the plaintiff of this case, but it is the existence of the right to claim cancellation of the registration of ownership on the same real estate, and thus, the subject matter of this case, which is the subsequent suit, is different from the subject matter of this case's claim for the registration of transfer of ownership on the ground of completion of prescription, and it does not conflict with the subject matter of extinctive prescription.

B. As to the ground of appeal No. 2 by the defendant Yoon-young and the ground of appeal by the defendant-appellant

According to the reasoning of the judgment of the court below, the court below acknowledged that the acquisition of the above part of the land of this case was completed by occupying the above part of the land of this case for twenty (20) years, and ordered the defendant to register the transfer of ownership, the plaintiff did not occupy the above part of the land of this case from December 1, 1989, which was against the defendant in the lawsuit against the plaintiff for cancellation of the registration of ownership transfer of this case's land of this case, and gave up the prescription benefits, and he did not occupy the above part of the land of this case again, and he did not occupy the above part of this case's land of this case. The defendant's defense that the above part of this case's land of this case merely occupied the above part of this case's land of this case since he did not occupy the above part of this case's land of this case, and the judgment against the plaintiff of this case was finalized on December 29, 199, and there was no dispute between the parties, but there was no errors in the rules of evidence or evidence that there was no errors in the judgment of evidence.

3. Therefore, all appeals by the plaintiff and the defendant are dismissed, and the costs of appeal are assessed against each appellant. It is so decided as per Disposition by the assent of all participating Justices.

Justices Park Jong-ho (Presiding Justice)