부동산에 대한 점유시효취득등기와 처분금지가처분등기의 법적 관계— 대법원 2012. 11. 15.선고 2010다73475판결에 대한 평석 —

Abstract

When (i) a third party is granted Registration on Provisional Disposition of Prohibition of Disposal regarding specific Immovables after some Possessor's fulfilling the period for Acquiring Ownership of Immovables by Possession but before the registration on the Acquisition by Prescription, (ii) then the Possessor is issued Ownership Transfer Registration on the ground of fulfilling the period for Acquiring Ownership of Immovables by Possession, and (iii) then the third party (Rightful Person of Provisional Disposition) is granted Ownership Transfer Registration on the ground of having received Favorable Judgment and Final Ruling in a lawsuit on the merits of Provisional Disposition of Prohibition of Disposal, in principle the Possessor cannot be set up against the Rightful Person of Provisional Disposition on the ground of Ownership Transfer Registration after fulfilling the period for Acquiring Ownership of Immovables by Possession. However, it is questionable that the principle above also applies to the case when (i) the Ownership Transfer Registration of the Nominal Person of Ownership Registration at the time of fulfilling the period for Acquiring Ownership of Immovables by Possession is void and null, and (ii) the Rightful Person of Provisional Disposition is True Owner of the Immovables at the time of fulfilling the period for Acquiring Ownership of Immovables by Possession, and (iii) the Preserved Right of that Provisional Disposition is a claim on Cancellation of Registration on the ground of Ownership or a Claim seeking Transfer of the Registered Title to the Lawful Owner. Regarding the issue above, the Supreme Court's decision that this paper examines ruled that the Rightful Person of Provisional Disposition cannot negate the effectiveness of ownership of the Acquisitor by Prescription, and also the Ownership Transfer Registration from Nominal Person of Registration to Acquisitor by Prescription at the time of fulfilling the period for Acquiring Ownership of Immovables by Possession is a Effective Registration because it matches the entity relation. In conclusion, the above rules of the Supreme Court is legally correct because those rules have logical consistency with the existing rules established by The Supreme Court of Effective Registration due to Actual Entity Relations, Claim seeking Transfer of the Registered Title to the Lawful Owner and Provisional Disposition of Prohibition of Disposal.