1. Overview of the case

1) Who is the party represented by Barun Law? : We represented the plaintiff from the first trial to the final appellate trial.

 

2) Background of the case : The plaintiff completed the transfer of ownership registration for land and 1/2 of the building thereon located in Yeoksam-dong, Gangnam-gu, Seoul on September 30, 2002 on the basis of sale, and the remaining 1/2 share in the building on March 24, 2014 on the basis of gift. The defendants are those who completed the transfer of ownership registration on March 25, 2011 for each 1/2 share of the adjacent land (“Land”) and the building on the ground (“Building”) on the basis of sale. Some of the walls of the building owned by the defendants encroach on a portion of the land owned by the plaintiff (the “Disputed Portion”).

 

3) Litigation : The plaintiff filed a claim against the defendants for the removal of the wall, and the surrender of the Disputed Portion and the return of unjust profits resulting from the possession of the Disputed Portion. The defendants claimed that they had ownership of the Disputed Portion on the basis of the lapse of the prescriptive period since they had inherited possession of the Disputed Portion from the previous occupants.

 

2. Decision

 

The court of first instance accepted only part of the plaintiff's claims. In particular, the court ruled that the defendants have a legitimate right to occupy the Disputed Portion because the time for the defendants’ former occupier to claim for ownership transfer registration under the statute of limitations has not yet run out and the defendants are in a position to exercise it on its behalf.

 

On the other hand, the appellate court accepted all of the plaintiff's claims for wall removal and surrender of the Disputed Portion. The defendants filed an appeal with the Supreme Court, but the appeal was dismissed on January 11, 2024, and the appellate court decision was conclusively entered.

 

3. Basis of the decision

It is the same as below in Section 4.

 

4. Our argument and role

 

Our attorneys argued in the first trial that (i) since the defendants' former occupiers lost possession of the Land and the Building by selling them to the defendants on March 25, 2011, their right to claim registration of transfer of ownership based on the statute of limitations was expired on March 25, 2021 due to the lapse of 10-year prescriptive period from the date of loss of possession, and (ii) regarding the 1/2 share in the Disputed Portion, since the transfer of ownership was registered in favor of the plaintiff on March 26, 2014, after the lapse of the prescriptive period, the defendants cannot claim their ownership under the statute of limitations.

 

However, the trial court did not accept some of the above arguments. Accordingly, our attorneys immediately appealed the first trial ruling. We argued that since the Supreme Court's 98Da32175 en banc ruling, pronounced on March 18, 1999, concerns the “right to claim registration of transfer of ownership due to sale (real estate purchaser's right to register transfer of ownership due to sale)” and takes into heavy consideration of the nature of the sale as a paid transaction in which the sale price is paid and the need to protect the buyer and the need to prevent the return of rights to the seller, the Supreme Court’s ruling could not be cited in this case. Further, we argued that, according to the precedents that have not been abolished by the en banc ruling above and the trend of precedents concerning the right to claim registration of a person of which prescription has been perfected, it is clear that a right to claim registration is regarded as a claim with a ten-year prescriptive period. We pointed out that, in the extreme case of expanding and applying the Supreme Court's en banc ruling as in the first trial judgment, the right to claim ownership transfer registration by a person who has completed the prescription for possession will not be permanently extinguished even though the right has the nature of a claim, which is not fair and equal. The appellate court accepted our argument and upheld all of the plaintiff's requests for wall removal and delivery of the Disputed Portion.

 

5. Significance of the decision

 

In the Supreme Court's 98Da32175 en banc ruling, dated March 18, 1999, since the Supreme Court explained, “with regard to the exercise of a right to claim the registration of transfer, since the case where hee purchaser of real estate receives the real estate, uses and profits from it, and then disposes of the real estate to another person as part of a more active exercise of rights to the real estate is not different from the case where he continues to use and profit from the real estate on his own, the statute of limitations for the right to claim the registration of transfer does not proceed in the same way in either of the above cases”, there appear to have been cases where lower court precedents expanded and applied that interpretation to the right to claim ownership transfer registration by those who have completed the prescriptive period for acquisition.

 

However, as is clearly revealed through the dissenting opinions and supplementary opinions, the Supreme Court’s en banc ruling above is a result of the residual influence of the constructive Civil Act, and is intended to protect the right of previous purchasers of unregistered real estate to claim ownership transfer registration, not to protect the person who has acquired property by the lapse of a prescriptive period. Even in subsequent cases, there continued to be a problem of not clearly distinguishing between the purchaser's right to claim registration and the right to claim registration of the person acquiring property under a statute of limitations, but through this case, the exact meaning and scope of application of the Supreme Court's en banc decision are clarified, thereby resolving the confusion in lower court decisions.

 

​□ Attorneys in charge: Son Heung-soo, Yoo Jeong-min