사해행위 수익자의 등기부취득시효 인정여부 -대법원 2016.11.25. 선고 2013다206313 판결-

Abstract

According to Article 245 of the Civil Act, if an occupant possesses a real property with the intention of ownership for a certain period of time, the occupant can acquire the ownership of real property ownership. However, it is questionable whether or not the acquisitive prescription should be admitted even in the case that an occupant possesses a real property owned by the occupant. While there are both positive and negative theories regarding whether or not the ‘prescription by possession’ should be admitted for a self-owned real property, a judicial precedent indicates that it is determined differently according to a specific case basically on the premise of necessity to protect a substantial rightful person. The Supreme Court Decision seongo 2013da206313 rendered on Nov. 25, 2016 is the first decision stating that the prescription based on the register shall not be admitted for a self-owned real property. The decision reviewed in this paper may be deemed appropriate taking the following into consideration: In the case reviewed in this paper, the beneficiary acquired the ownership of real property after completing a legal and valid registration, and it is estimated the beneficiary holds the ownership of real property legally. Thus, there is no difficulty of proving liability for the ownership. Also, in accordance with the decision ordering the revocation of fraudulent act, the real property of beneficiary in this case is considered as the debtor’s liability property to be subjected to a forced execution. Therefore, the prescription based on the register asserted by the beneficiary is only a plea to escape from such burden.