물권적 청구권의 이행불능과 손해배상청구권

Abstract

The Supreme Court of Korea recently changed its previous position by a unanimous decision, clearly stipulating that a compensatory damage claim arising from performance impossibility of a claim based on ownership cannot be recognized. This means that when an owner loses ownership, existence of a claim based on ownership cannot be recognized because the basis of such a claim also disappears. This judgment of the Supreme Court is deemed appropriate. Since a claim based on ownership is not aimed at performance of a contract but is a right to recover a real right that has been encroached upon, the value it seeks is different from that of a debt claim; and since characteristically it is also a right subordinate to a real right, if a real right becomes extinct then a claim based on ownership itself should also be seen as becoming extinct. From a policy perspective it is questionable whether victims of ownership violation by illegal occupation should be treated more favorably than victims of other illegal acts. In particular it is difficult to accept because recognizing compensatory damage based on the reason of performance impossibility of a claim based on ownership can result in a harsh outcome for a subsequent purchaser. However, in the case of saving a cancellation of ownership transfer registration when rescission of a contract occurs by compulsion, since this is a situation where a valid contract has been cancelled, unlike an instance where there is no contractual relationship at all, a debt claim can be established, and on such a basis the principle of law on compensatory damage due to performance impossibility can be applied. Meanwhile, in the case where an owner exercises a claim for damages against a trespasser, the time point of calculating the compensatory damage amount and the reckoning starting point of the extinctive prescription can become problematic. In this regard, the time point when the owner loses ownership – for instance the point when the acquisition by prescription is completed when an owner reflexively loses his rights due to a third party’s acquisition by prescription – should be taken as the standard. Taking the time point of a definitive verdict on a losing lawsuit as the standard does not work since it is difficult to fit in with the legal principles of civil law that serves as the substantive law; additionally, it cannot become a general standard because the definitive losing verdict against the party gaining prescriptive acquisition is not a precondition for a claim for damages against the trespasser.