The meaning in the case where "it is impossible to exercise the right" that is not in progress, and the starting point of the statute of limitations for the right to claim ownership transfer registration of a new building in progress (=

Article 166 of the Civil Act

Supreme Court Decision 2003Du10763 Decided April 27, 2004 (Gong2004Sang, 916) Supreme Court Decision 2005Da3113 Decided April 28, 2005 (Gong2005Sang, 803) Supreme Court Decision 2006Da1381 Decided April 27, 2006 (Gong2006Sang, 897)

Plaintiff 1 and one other (Attorney Song Jong-chul, Counsel for the plaintiff-appellant)

Movable City Development Corporation

Seoul High Court Decision 2006Na49750, 49767 decided March 28, 2007

The part of the judgment below against the plaintiffs among the main claim is reversed, and that part of the case is remanded to the Seoul High Court.

We examine the grounds of appeal.

1. In full view of the selected evidence, the court below acknowledged that, among the defendant on December 31, 1993, the plaintiffs purchased seven households from among multi-household houses newly built by the defendant (hereinafter "multi-household houses in this case") at the time in return for the amount invested by the plaintiffs to the defendant, the defendant agreed to waive the above investment money and shares and to waive the management participation by withdrawing from directors and auditors. Accordingly, the plaintiffs concluded a sales contract with the defendant to purchase each real estate listed in the attached list 1 through 7 of the judgment below. The court below determined that the plaintiffs' right to claim the transfer of ownership of the real estate in the attached list 4 (hereinafter "the real estate in this case") should not be occupied by the plaintiffs in the case of the real estate listed in the attached list 4 (hereinafter "the real estate in this case"). Since the lawsuit in this case was clearly filed on October 19, 204, which was the date of the sales contract in this case, which was the starting date of the right to claim the transfer of ownership.

2. However, it is difficult to accept the judgment of the court below that the plaintiffs' right to claim ownership transfer registration of the instant real estate expired by prescription in the following respect.

The statute of limitations proceeds from the time when a right has occurred objectively and is able to exercise the right, and does not proceed only during the period during which the right can not be exercised. The phrase "the case where the right holder cannot exercise his/her right" means the case where there is a de facto disability, such as the existence of the right or the possibility of exercising the right, not the case where there is a de facto disability, such as the fact that the right holder was unaware of the existence of the right or the possibility of exercising the right, but the case where there is a de facto disability, for example, the non-performance of the term or condition (see Supreme Court Decision 2006Da1381, Apr. 27, 2006).

According to the facts and records duly established by the court below, it can be known that the multi-household house of this case was newly constructed at the time of the sales contract of this case and was completed on or around September 1995. In light of the above legal principles, the plaintiffs' right to claim for ownership transfer registration of this case was initiated from the time when the multi-household house of this case was completed as soon as possible, and the legal grounds for exercising their rights were extinguished. Since the plaintiffs' right to claim for ownership transfer registration of this case was filed on December 22, 2004, which was 10 years after the lapse of 10 years from that time, the plaintiffs' right to claim ownership transfer registration of this case had expired.

Nevertheless, the lower court determined that the extinctive prescription period of the Plaintiffs’ right to claim ownership transfer registration of the instant real estate is the date of the instant sales contract. In so doing, the lower court erred by misapprehending the legal doctrine on the starting point of the extinctive prescription of the right to claim ownership transfer registration of a newly constructed building, thereby adversely affecting the conclusion of the judgment. The grounds of appeal

3. Therefore, the part against the plaintiffs among the main claim of the judgment of the court below shall be reversed, and this part of the case shall be remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Hong-hoon (Presiding Justice)