不動産占有取得時效 完成 後 不動産의 所有權을 取得한 第3者와 時效完成占有者의 關係

The judicial precedent that has been established by the Korean Supreme Court regarding the legal effects due to the completion of an acquisitive prescription on real estate in Paragraph 1 of Article 245 of the Civil code can be described as follows; (a) The registered owner cannot claim against the occupant for the delivery of the real estate, the demolition of the building on the real estate (if it is land), the return of unjust enrichment, and damages. (b) The occupant can claim for the transfer of the registration of the real estate against the registered owner who obtained the ownership before the completion of prescription period. (c) The occupant cannot claim for the transfer of the registration of the real estate against the registered owner who obtained the ownership after the completion of prescription period. (d) The starting point of the acquisitive prescription period should be fixed at the time the occupant began to occupy the real estate. The occupant is not permitted to insist an arbitrary starting point. (e) In spite of the above legal principle (c), the occupant can claim for the transfer of the registration of the real estate against the registered owner who obtained the ownership after the completion of prescription period, if another acquisitive prescription period has completed after the registered owner obtained the ownership while the occupant continues to occupy the real estate. In this study, I researched the problems of the above legal principle (c), which ignores the unique legal status of the occupant who has achieved an effect of an acquisitive prescription on the real estate. (1) The transfer of the registration of the real estate is merely the transfer of the legal status, not influencing the actual fact. The acquisitive prescription is the legal system that endows a predominant effect to the actual fact over the legal status. (2) There is no reason to discriminate between the registered owner who obtained the ownership before the completion of prescription period and the registered owner who obtained it after, even if the registered owner obtained the ownership for the purpose of interrupting the occupant from acquiring the right to claim for the transfer of the registration of the real estate. (3) According to the above legal principle (c), the longer the occupant has occupied the real estate, the lower the possibility the occupant successfully obtains the ownership. I insist that the judicial principle should be amended to protect the occupant who has achieved an effect of the acquisitive prescription on the real estate from a person who acquired ownership of that real estate after the completion of an acquisitive prescription period. That occupant deserves the protection because he/she satisfies the following conditions; he/she began to occupy it in the belief that he/she is the owner of the real estate, and the registered owner has taken no action to stop the occupation. I support the theory that the judge should measure the period of the acquisitive prescription in a way to count the term reversely from the day of judgment. I have found in the adjudication of the Korean Supreme Court (Case # 2007DA5172,15189) that the court realized the problem of the above legal principle (c) and tried to modify the principle in order to broaden the range of protection of the occupant. The adjudication declared that in spite of the above legal principle (e), the occupant can claim for the transfer of the registration of the real estate against the registered owner who obtained the ownership from the previous owner who obtained the ownership after the completion of prescription period, if another acquisitive prescription period has completed after the previous owner obtained the ownership while the occupant continues to occupy the real estate. However, it could be more desirable for the Supreme Court to declare the abolition of the above legal principle (c).