[1] Whether an obligor is aware of the legal nature of rights, etc. or must specify the cause of such rights, etc. in order to recognize the liability approval as a ground for interrupting extinctive prescription (negative), and the standard for determining whether such approval is granted

[2] In a case where Gap purchased real estate under Eul's name and entrusted the title of registration, but failed to carry out the real name registration until the grace period under Article 11 of the Act on the Registration of Real Estate under Actual Titleholder's Name expires, and where Eul filed a lawsuit seeking the implementation of the procedure for the registration of ownership transfer, the case holding that the judgment below erred in the misapprehension of legal principles on the ground that Eul's act of recognizing Gap's internal ownership, such as demanding the payment of the tax on the real estate under title trust, is reasonable to deem that Eul's act of claiming the payment of the tax on the real estate under title trust, was implicitly included in Gap's act of knowing that he would have known that he would be liable for the transfer and recovery of the ownership registration, and thus,

[1] A debt approval as a ground for the interruption of extinctive prescription is established by expressing that an obligor who is a party to the extinctive prescription benefit becomes deprived of the claim due to the completion of the extinctive prescription, or his/her agent is aware of the other party's right or his/her debt, and the method of indication is not an implied case without demanding any form. In addition, the approval is not a unilateral act that recognizes the existence of the other party's right, etc., and it does not require specific confirmation of the cause, content, scope, etc. of the right, but it does not require the obligor to know of the legal nature of the right, etc., or specify the cause, such as the right. Whether there is such approval or not should be objectively and reasonably determined in accordance with logical and empirical rules, social common sense, so that it conforms to the ideology of social justice and equity, by comprehensively examining the contents, motive, and circumstance of the expressive act at issue, the purpose and genuine intent of the parties to the act, etc.

[2] In a case where Gap purchased real estate under Eul's title trust agreement with Eul and entrusted the title of registration to Eul, but did not make a real name registration until the grace period under Article 11 of the Act on the Registration of Real Estate under Actual Titleholder's Name expires, but Eul filed a lawsuit seeking the implementation of the procedure for the registration of ownership transfer of the above real estate based on the right to claim the return of unjust enrichment against Eul for the restoration of the above real estate ten years after the ten-year grace period, the case held that the judgment below erred in the misapprehension of legal principles as to Gap's right to claim ownership transfer of the above real estate, since Eul's act of taking the above real estate under the premise that Eul's own ownership is not its own ownership in relation with Gap's own property, such as tax burden, was actively requested by Eul, and it is reasonable to view that Gap's domestic ownership was explicitly included in Gap's domestic ownership, and since Eul's obligation to transfer and recover the ownership registration was approved until Eul refused to return Gap's request for the return.

[1] Articles 105 and 168 subparag. 3 of the Civil Act / [2] Articles 105, 162(1), and 168 subparag. 3 of the Civil Act; Article 11 of the Act on the Registration of Real Estate under Actual Titleholder’s Name

[1] Supreme Court Decision 200Da65864 decided Feb. 23, 2001 (Gong2001Sang, 759) Supreme Court Decision 2008Da25299 decided Jul. 24, 2008 (Gong2008Ha, 1239)

Plaintiff (Attorney Son Ji-yol et al., Counsel for the plaintiff-appellant)

Defendant (Law Firm Dokdo, Attorneys Doh-hee et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2010Na96630 decided May 10, 2012

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. On April 24, 1989, prior to the enforcement of the Act on the Registration of Real Estate under Actual Titleholder’s Name (hereinafter “Real Estate Real Name Act”), on April 24, 1989, the Plaintiff purchased each of the instant real estate under the name of the Defendant and entrusted the Defendant with the title of the registration thereof, but the period of grace stipulated in Article 11 of the Real Estate Real Name Act has expired after the enforcement of the Real Estate Real Name Act. Furthermore, the lower court accepted the defense that the Plaintiff’s claim for the return of unjust enrichment against the Defendant for the restoration of each of the instant real estate was extinguished due to the expiration of the statute of limitations.

In addition, the Plaintiff’s re-appeal that the statute of limitations had been interrupted due to the Defendant’s approval of the obligation to transfer ownership of each of the instant real estate, was rejected for the following reasons. That is, even if the Defendant received an amount equivalent to the increased aggregate land tax and medical insurance premiums additionally borne by the Defendant by holding each of the instant real estate from the Plaintiff, and the Defendant did not raise any objection against the Plaintiff’s application for subdivision of a part of the instant real estate, such circumstances can only be deemed as having acknowledged the fact of a title trust agreement itself between the Plaintiff and the Plaintiff, or as having rejected several requests from the Plaintiff from 2004, even if the Defendant was requested several times from the Plaintiff to transfer the ownership transfer registration of each of the instant real estate, and thus, it cannot be deemed that the Defendant explicitly expressed the perception of the existence of the obligation to transfer ownership of each of the instant real estate, and thus, it cannot be deemed that the Defendant recognized the existence of the obligation to transfer ownership of each of the instant real estate that was borne by the Plaintiff with the lapse of the said grace period under the Real Estate Real Name

2. However, we cannot agree with the judgment of the court below that the defendant cannot be deemed to have approved the obligation to transfer ownership of each of the instant real estate for the following reasons.

A. The approval of an obligation as a ground for the interruption of extinctive prescription is established by expressing that an obligor who is a party to the extinctive prescription benefit is aware of the other party’s right or his/her obligation upon the completion of the extinctive prescription period, or that the obligor is aware of the other party’s right or his/her obligation. The method of indication is not an implied case without demanding any form. In addition, the approval is not a unilateral act recognizing the existence of the other party’s right, and it does not require specific confirmation of the cause, content, scope, etc. of the right (see Supreme Court Decision 200Da65864, Feb. 23, 2001, etc.) and it does not require the obligor to know of the legal nature of the right, etc. or to specify the cause of the right, etc.

In addition, whether such approval is granted or not shall be determined objectively and reasonably in accordance with logical and empirical rules and the common sense of society so as to conform to the ideology of social justice and equity by comprehensively examining the contents, motive and background of the expressive act at issue, the purpose and genuine intent of the parties to achieve through such act, etc. (see Supreme Court Decision 2008Da25299, Jul. 24, 2008, etc.).

B. According to the facts and records acknowledged by the court below, ① the defendant was delivered property tax (land portion) on each of the instant real estate by 2004 to the plaintiff voluntarily and had the plaintiff pay it. Accordingly, the defendant continued to pay property tax on each of the instant real estate. ② The defendant, when he externally owned each of the instant real estate, requested the plaintiff to settle the aggregate land tax additionally, requested the plaintiff to pay the increased amount in the aggregate land tax by 1997, and issued receipts to the plaintiff by 1998 to 204. ③ Medical insurance premium was transferred to the defendant's bank account notified to the plaintiff from 2001 to 2004, and the defendant did not request the plaintiff to pay the additional share of the property tax from 2000 to 2004 to 2004. The defendant did not request the plaintiff to pay the property tax on each of the instant real estate portion by 200 to 200,000,0000,0000 from 20,000.

Examining the above facts in light of the legal principles as seen earlier, the Defendant explicitly expressed that each of the instant real estate was committed by 2004 only on the premise that it was not the Plaintiff’s own ownership but the Plaintiff’s own ownership in relation to the relationship with the Plaintiff, and that the Defendant actively requested the Plaintiff to incur property expenditure, such as the burden of related taxes. As such, barring any special circumstance, it is reasonable to deem that the Defendant explicitly expressed that it was aware that the Plaintiff was liable to transfer and recover the registration of ownership, barring any special circumstance where the Defendant did not have the right to each of the instant real estate nominal trust and recognized the Plaintiff’s internal ownership

Therefore, since the Defendant approved the obligation to transfer ownership of each of the instant real estate from the time of 2004, which began to refuse the Plaintiff’s request for return, the period of extinctive prescription of the Plaintiff’s right to claim transfer of ownership of each of the instant real estate was interrupted until that time, and as long as it is evident in the record that the instant lawsuit was filed on April 30, 2009, for which ten years have not passed since the instant lawsuit was filed, the Defendant’s

On the contrary, the court below rejected the Plaintiff’s assertion as to the interruption of extinctive prescription on the ground that the Defendant cannot be deemed to have acknowledged the obligation of ownership transfer registration on each of the instant real estate, by misapprehending the legal principles on the interruption of extinctive prescription due to the approval of an obligation, thereby adversely affecting the conclusion of the judgment. The ground of appeal

3. Therefore, without examining the remaining grounds of appeal by the Plaintiff, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Ko Young-han (Presiding Justice)