Plaintiff (Law Firm Multil, Attorneys Go Jae-seok et al., Counsel for the plaintiff-appellant)

Scar Savings Bank (Law Firm Gong & Kim, Attorneys Go Gyeong-chul et al., Counsel for defendant-appellant)

November 24, 2017

1. With respect to the Plaintiff’s share of 140.2/1447 out of 112.6 square meters in Seodaemun-gu Seoul (number 1 omitted), the Defendant shall implement the procedure for registration of cancellation of the registration of the establishment of a neighboring mortgage completed by the Seodaemun-gu Seoul Western District Court’s Seodaemun-gu Registry on July 17, 2009 as the receipt of No. 25813.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Basic facts

A. On February 14, 1955, Nonparty 1 purchased approximately KRW 164.3 of the land (number 2 omitted) in Seodaemun-gu Seoul (hereinafter “Before subdivision”) from the State on February 14, 1955, by specifying approximately KRW 164.3. The registration of ownership transfer is completed with respect to the portion of the land before subdivision.

B. Nonparty 1 sold approximately 31 of the land he purchased by himself as described in the above A. Accordingly, Nonparty 2 completed the registration of ownership transfer with respect to the share of 31/147 of the land before partition. The said share was transferred to Nonparty 3, Nonparty 4, Nonparty 5, and Nonparty 6 before transfer.

C. On November 20, 1995, the Plaintiff purchased approximately 31 square meters and its ground buildings from Nonparty 6’s land before the subdivision of the above sub-paragraph (b). Accordingly, on December 29, 1995, the Plaintiff completed the registration of ownership transfer on the ground of sale for 31/1447 shares out of the land before subdivision. Since that time, the Plaintiff occupied the land purchased as above as the housing site and the parking lot site.

D. Meanwhile, Nonparty 34 completed the registration of ownership transfer on May 24, 200 with respect to the portion of 140.2/1447 out of the land before subdivision on August 1, 200, which was based on sale and purchase on May 24, 200. On July 17, 2009, the Defendant completed the registration of ownership transfer on July 16, 2009 with respect to the above co-ownership under Nonparty 34’s co-ownership.

E. The Plaintiff asserted that approximately 31 square meters of the land before subdivision was acquired by prescription, and filed a lawsuit against Nonparty 34 against the Seoul Western District Court 2015Da235882, and the said court rendered a lawsuit against the Plaintiff for the registration of ownership transfer on April 8, 2016, the said court rendered a judgment that “the Defendant shall complete the registration of ownership transfer on the ground that the acquisition by prescription was completed on November 20, 2015 with respect to the share of KRW 140.2/147 of the portion of “1” in the attached Form, which was connected in order to the Plaintiff, among the size of the 519.7 square meters in Seodaemun-gu, Seoul (number 2 omitted). The judgment became final and conclusive at that time.

F. Since then, on June 30, 2016, the land before the subdivision was divided into the Seodaemun-gu Seoul Metropolitan Government (number 2 omitted) large 407.1 square meters and the Seodaemun-gu Seoul Metropolitan Government (number 1 omitted) large 112.6 square meters (hereinafter “instant land”).

G. The Plaintiff completed the registration of ownership transfer on November 8, 2016, based on the final and conclusive judgment as to the share of 140.2/1447 among the instant land (hereinafter “instant share”) based on the prescriptive acquisition.

[Grounds for Recognition: Evidence Nos. 1 through 4, Evidence Nos. 6 through 10, Evidence Nos. 13, 14, and 16-1 through 21, Evidence No. 11-1, 2, and purport of the whole pleadings]

2. Determination

A. Determination on the cause of the claim

(1) The acquisition by prescription of real estate constitutes original acquisition and acquisition by prescription shall acquire full ownership that does not affect the original owner’s ownership by any restriction (see Supreme Court Decision 2004Da34163, Sept. 24, 2004, etc.).

(2) As to the instant case, since around November 20, 195, the Plaintiff occupied the instant land as a housing site or a parking lot site for twenty (20) years from around November 20, 1995, the Plaintiff acquired the instant land by prescription on November 20, 2015, and completed the registration of ownership transfer on the instant land portion on November 8, 2016, and thus, the Defendant is obligated to implement the procedure for registration of cancellation of the registration of ownership transfer on the instant land portion to the Plaintiff.

B. Judgment on the defendant's assertion

In addition to the land in this case, the Defendant asserted to the effect that the Plaintiff acquired shares owned by Nonparty 35 from the land in Seodaemun-gu, Seoul and the prescriptive acquisition of the land in this case was completed on June 29, 1985 after the passage of 20 years from June 29, 1965 by Nonparty 35, and that the Plaintiff cannot set up a defense against the Defendant who acquired the instant collateral security after the completion of the prescriptive acquisition. However, the Plaintiff purchased the instant land and its house from Nonparty 6 on November 20, 1995 and occupied the instant land from the time on which he purchased the instant land and owned the instant shares from that time. Thus, the Defendant’s above assertion premised on the inheritance of the said land in the above (number 3 omitted) is without any justifiable reason.

3. Conclusion

Therefore, the plaintiff's claim of this case is justified and it is so decided as per Disposition.

Judges Lee Jae-tae