제1차 점유취득시효 완성 후 저당권이 설정된 경우 제2차 취득시효가 인정될 것인지 여부 - 일본판례 및 학설을 참조하여 -

Generally speaking, If owner transfers ownership of the real estate after first acquisitive prescription by possession, possessor may not claim completion of acquisitive prescription by possession to buyer(third principles of precedents on acquisitive prescription by possession). Howerever, according to the Korean Supreme Court, notwithstanding that the point of time, when the owner has been changed from the original possessor to the new one, is reckoned as the starting point, the possessor may reckon the starting point of new acquisitive prescription by possession from the point of time when the ownership has been transferred to the third party in case the prescription has been expired as well as may claim for the completion of the secondary acquisitive prescription(third principles of precedents on acquisitive prescription by possession). In Japan, there was adispute between Japanese Supreme Court Decision delivered on March 16, 2012 and Japanese Supreme Court Decision delivered on October 31, 2003 about judgement applicability of fifth principle of precedents on acquisitive prescriptionby possession, when owner takes out a mortgage after first acquisitiveprescription by possession. Consequently, the Japanese Supreme Court decided that the possessor claims secondary acquisitive prescription to the mortgagee(who acquire mortgage) after first acquisitive prescription. In this case, mortgagee shall interrupt extinguishment of mortgage by asking for the approval of mortgage to possessor.