등기부시효취득시 무권리처분자의 원소유자에 대한 부당이득 반환 —대법원 2022. 12. 29. 선고 2019다272275 판결—

Abstract

The Supreme Court denied the unauthorized person's obligation to return unjust enrichment in a case in which the original owner lost ownership after the purchaser completed the registration acquisitive prescription after the unauthorized person's disposal act. This means that the possession of trading proceeds by unauthorized person is legally justified. However, this theoretical conclusion goes against the intuitive feeling of justice. On the other hand, there is also an argument that the restitution of unjust enrichment was not recognized for the purchase price before the registration acquisitive prescription was completed. It is possible to object to this in that the loss occurred after registration acquisitive prescription, and that a claim for restitution of unjust enrichment was possible through ratification even before the registration acquisitive prescription was completed. Therefore, the establishment of the restitution of unjust enrichment should be acknowledged. There is a problem of when the extinctive prescription of the restitution of unjust enrichment will begin. If the Supreme Court's position on the right to claim damages due to tort is maintained even in the case of the unjust enrichment, the extinctive prescription period will begin when the original right holder loses the lawsuit for termination of registration. However, in this case, no matter how long time passes, the holder of the original right can exercise the right to claim restitution of unjust enrichment against the unauthorized person. The validity of these results is questionable. In this respect, the starting point for the extinctive prescription of the restitution of unjust enrichment should be the point at which the registration acquisitive prescription is objectively completed.