무효등기의 유용과 자기 소유 부동산에 대한 등기부취득시효 - 대법원 2022. 7. 28. 선고 2017다204629 판결을 중심으로 -

This thesis is to analyze the Supreme Court judgments on rehash of invalid registration and whether to acknowledge a person’s acquisitive prescription for its owned real estate. The matter of this judgment is that registration of provisional seizure has been completed but since there was rehash of invalid registration and led to illegal obliteration of original registration, the restoration registration is in need, but the current owner who acquired the possession and registration from a person who had made the original registration is available to complete the acquisition prescription and extinguish the registration of provisional seizure, aforementioned. The first issue is to deal with reversion of real estate ownership due to subsequent changes in a real right led by rehash of invalid registration and to clarify a legal relationship about the position of a person with a right for provisional seizure. Rehash of invalid registration cannot be used against any third parties who have an interest in the registration made prior to such rehash. In such case, if the registration of a subject of rehash is considered absolute invalid when it is incompatible with any rights of such third parties, and when it is compatible, it is considered relative invalid and survives as posterior. As stated in the judgement, it would be reasonable to maintain the current status of rights unless the rights of a third party are not breached. In the end, it finds reasonable for the judgement of the original trial that rights of the subject of rehash are maintained for the time being but survive under the burden of registration of any third party having an interest in registration. The second issue is that if compatibility between a person with a right for provisional seizure and a person who has acquired the ownership registration is recognized, whether it would be possible to recognize the acquisitive prescription for register as the current owner’s possession and registration that initiated after the provisional seizure registration. The core of this conflict lies on whether a person can be recognized for acquisitive prescription for its owned real estate. The principle is that a person’s possession of its owned real estate cannot be considered as the possession as the foundation for acquisitive possession, but it also states exceptional cases for recognizing such acquisitive prescription, in which a person is with ownership without effect of general situation. In the judgment, it states that if a person who has legally and validly registered real state under its name and acquired ownership and occupies the real estate, such possession cannot be considered the possession that is the foundation for recognition for acquisitive prescription, and clearly denies the completion of acquisitive prescription for register, once again confirming and supporting the legal principle widely accepted in academia and precedent judgements. Furthermore, it states that such possession could be available for recognition for acquisitive prescription only in exceptional cases in which the possession of its own real estate has to be protected by elevating it to a legal relationship and to be relieved from difficulties in verification. The author finds the judgment very reasonable, considering that it suggests criteria for principles and exceptions on recognition for a person’s acquisitive prescription for its owned property.