토지 경계 침범이 등기의 추정을 복멸하는지 여부 - 대법원 2023. 7. 13. 선고 2023다223591, 223607 판결 -

The presumptive power of registration is a crucial system that ensures the safety of real estate transactions. The Supreme Court decision under review is a precedent-setting judgment that applied the presumptive power of registration when multiple parties contested possession of a single piece of land. In this case, the issue was whether the presumptive power of registration was overturned by a building that encroached on the land, even when the ownership transfer registration for the encroached land was completed based on a final judgment due to the completion of acquisitive prescription. The judgment of the possessor should be faithful to the indication of actual control, and the concept of building site should also be considered. As long as exclusive possession is at issue, joint possession cannot be established, and the possessor must be identified. The actual controller of the encroached land and the possessor of the site as the building owner is the defendant. In contrast, the Supreme Court decision seems to have fallen into a dilemma regarding the recognition of the possessor by not overturning the presumption of rights of the person who acquired ownership through the completion of acquisitive prescription, despite the encroachment on the land boundary. Possession is essentially a matter of fact, and the presumptive power only arises from the registration of rights, not from the registration of facts. This is a natural consequence unless the presumptive power, equivalent to that of registration, is granted to the entries in the cadastral records. The notion of strengthened presumptive power of registration by a final judgment is problematic in light of the basic principles of civil litigation. Unlike the Supreme Court decision, the original judgment is more appropriate.