동일 부동산에 대한 2차 점유취득시효 완성의 법리 - 대법원 2009. 7. 16. 선고 2007다15172·15189 전원합의체 판결을 중심으로 -

Abstract

The Article 245 of Civil Act of Korea provides the Acquisitive Prescription. The Supreme Court has established five principles regarding acquisitive prescription. Among them, fifth principle(Korean Supreme Court 2009. 7. 16, 94da46360) was that if an original possessor possess continuously the same real property and the period for acquiring ownership has been completed by reckoning a new starting point, though the transfer to the third party of the ownership has been done after completion of acquisitive prescription, he or she can allege the completion of acquisitive prescription. With regard to the case where the ownership of the real estate is transferred to a third party before the real estate, of which acquisitive prescription was completed by possession, is registered, the Korean Supreme Court ruled as in the following: Notwithstanding that the point of time, when the owner has been changed from the original possessor to the new one, is reckoned as the starting point, the possessor may reckon the starting point of new acquisitive prescription by possession from the point of time when the ownership has been transferred to the third party in case the prescription has been expired as well as may claim for the completion of the secondary acquisitive prescription. And although the possessor is transferred on the register before the acquisitive prescription is expired, it is irrational to regard it to be what the possessor has broken off the factual state, hence it has no occasion to suspend acquisitive prescription. In result, the new registered owner is regarded to be directly involved in the transfer of rights and duties at the point of time when acquisitive prescription is completed, by which the registered owner is disadvantaged. Accordingly, the one who completed prescription may claim for the acquisition of prescription to the registered owner. In addition, the Supreme Court judged that the juridical principle might be applied to even the case where the secondary acquisitive prescription takes effect as above and the registered owner is changed before the prescription of possession is expired. Consequently, unlike this, the Supreme Court broke the previous precedents that the registrant should not be changed during possession even in the case of the secondary prescription of possession. Such ruling may be considered to be a juridical interpretation that has taken the so-called five principles of precedents to a higher level, and to be appropriate for the purpose of the acquisitive prescription by possession.