Requirements for exercising the right to claim by the expiration of the prescription period for possession

Although the Civil Act does not separately stipulate the creditor's right to compensatory damages and the right to cancel the contract as an effect of impossibility of performance, there is no reason to deny the right to claim the subject matter. However, in order to exercise the right to claim the subject matter because the right to claim the registration based on the expiration of the period of acquisition of real estate due to possession becomes impossible, the right to claim the registration on the ground that the period of acquisition of real estate due to possession of the title holder has expired before the impossibility of performance or that the right to claim the registration based on the expiration of the period of acquisition should have been exercised, and if it does not reach the assertion or exercise of such right before the impossibility of performance, the right

Articles 245(1) and 390 of the Civil Act

Supreme Court Decision 92Da4581, 4598 delivered on May 12, 1992 (Gong1992, 1849), Supreme Court Decision 94Da27113 delivered on February 3, 1995 (Gong1995Sang, 1150), Supreme Court Decision 95Da38080 delivered on December 22, 1995 (Gong1996Sang, 504 delivered on October 29, 1996) (Gong196Sang, 3516)

Baho (Attorney Shin Sung-sung et al., Counsel for the defendant-appellant)

Kim Young-ho

Daegu District Court Decision 94Na1591 delivered on July 22, 1994

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined.

The court below rejected the plaintiff's assertion that part of the real estate in this case, which was registered for preservation as owned by the defendant and registered for transfer of ownership through consultation at the time of the non-party occupation village, was registered in title from the non-party occupation Kim Jong-cheon, the plaintiff's father, the plaintiff's father, and the defendant should pay part of the compensation due to the purchase received from the point of occupation village to the plaintiff, and even if not, there is no evidence to support the plaintiff's assertion that the defendant agreed to pay half of the compensation amount to the plaintiff. The above measures of the court below are just and there is no error of law by the rules of evidence such as the theory of lawsuit. The argument

On the other hand, the Plaintiff’s claim was rejected on the ground that: (a) the Plaintiff had the right to claim for ownership transfer registration against the Plaintiff; (b) the Plaintiff had the right to claim for ownership transfer registration against the Plaintiff; and (c) even if the Plaintiff became impossible to implement the registration due to ownership transfer registration before the ownership transfer registration was completed, the Plaintiff has the right to claim against the Defendant; and accordingly, (d) the Defendant shall return part of the compensation received by the Defendant to the Plaintiff in accordance with the doctrine of return of unjust enrichment, as the Defendant was the legal owner at the time of the instant purchase by agreement; (b) the receipt of compensation cannot be deemed unjust enrichment; and (c) the right to claim for

Therefore, as a result of impossibility of performance under the Civil Act of the Republic of Korea, the right to claim compensation and the right to cancel the contract is not separately stipulated in the interpretation, but there is no reason to deny the right to claim the interpretation (see Supreme Court Decision 92Da4581, 4598, May 12, 1992). However, in order to exercise the right to claim the registration based on possession as a result of the expiration of the period of acquisition of the real estate ownership due to possession is impossible, the right should have been claimed for the reason that the period of acquisition of the real estate due to possession of the title holder has expired, or for the reason that the period of acquisition of the real estate due to the expiration of the period of acquisition has expired before the impossibility of performance, and the right to claim the registration cannot be exercised if the plaintiff did not reach the assertion or exercise of the above right before the impossibility of performance. In this case, even if the plaintiff acquired the right to claim the ownership transfer due to the expiration of the period of acquisition of the real estate due to possession of the land in this case under the name of the non-party.

Ultimately, the lower court’s dismissal of the claim for the return of the price of the instant parcel of land sought by the Plaintiff is justifiable even if the reasoning is different, and there is no error of law such as misapprehension of legal principles as the theory of lawsuit. There is no ground for conclusion

Therefore, the appeal is 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.

Justices Kim Jong-soo (Presiding Justice)