등기청구권의 소멸시효에 관한 유형별 고찰

Abstract

While the right can be granted in a number of situations, the statute of limitation against the right differs depending on why the right is granted and what kind of legal nature it has. If a person entitled to the registration does not exercise his or her right to claim registration long-term, the transfer of a real right couldn’t be made as intended, making the legal relations unstable. Also, by owning and holding a property in reality but not registering it, one would violate the law of property registration by a holder of actual rights. Therefore, whether the right to claim registration cannot be enforced due to statute of limititations or not is the most important in resolving such issues. The biggest controversy, in particular, arises from the right to claim registration to transfer ownership in the wake of legal practices such as property acquisition, and the statute of limitations against the right after the acquisitive prescription is constituted. The right to claim registration can or can’t be affected by the statute of limitation, depending on whether the claim is based on a real right of a property or on return for legally secured portions. The statute of limitations would be effective in the latter case while it wouldn’t in the first case. Meanwhile, the Supreme Court has previously ruled that the right of claim registration to transfer ownership is not subject to any statute of limitations when a seller has already delivered a property to a buyer, according to an acquisition contract, and the buyer is already holding and using it, or a person keeps holding a property by raising the defense of acquisitive prescription after it’s constituted. Some say that those rulings seem reasonable if we accept the concept of expectation of a real right of a property. This paper examines and summarizes academic theories and legal precedents, case by case, regarding why the right to claim registration is granted, what kind of legal nature it has and whether it becomes unenforceable due to statute of limitations, with an aim to improve predictability and legal stability in interpreting and exercising the right to claim registration.