지방자치단체의 점유와 소유권이전등기청구권의 소멸시효 중단 - 대법원 2022. 4. 28. 선고 2019다272053 판결을 중심으로 - = The Possession by Local Government and Suspension of Statute of Limitations for Ownership Transfer Registration Claims - Focusing on the 2019Da272053 ruling of the Supreme Court on April 28, 2022 -

지방자치단체의 점유와 부동산 소유권이전등기청구권의 시효를 분석한다.

The Supreme Court ruled on November 6, 1976, 76da148, which stated, “If the purchaser of real estate has received the object and is making profits from its use, the purchaser’s right to claim registration is not subject to the statute of limitations.” The legal principle has been transformed and developed into the legal principle that the statute of limitations on the right to claim registration of ownership transfer is suspended while the person who has the right to claim registration of ownership transfer of real estate is ‘possession’ the subject real estate, and is widely applied to this day.

However, this legal concept of ‘possession’ is an empty concept determined according to social concepts rather than a fixed sign that establishes possession. The statute of limitations system is a system that pursues legal stability by protecting the order built on goods. Recognizing the empty concept of ‘possession’ as a reason that directly affects the gain or loss of the parties’ rights by suspending the statute of limitations will prevent future statutes of limitations.

It fails to provide a solid standard for reference from the perspective of prisoners who will claim suspension, increasing the possibility of disputes occurring and becoming a starting point for judges to make arbitrary judgments. This problem was actually revealed in the form of contradictory judgments made by precedents on identical or similar cases in cases where local governments occupy private land. In the case, the local government appeared as the subject of possession, and possession was affirmed even though the marks of ‘recognizability’ and ‘excludability of domination by others (exclusivity)’ were very weak or absent.

This is harsh on the other party to the legal act compared to claims, seizure or provisional seizure, provisional disposition, approval, etc., which are presented as grounds for suspending the statute of limitations under our civil law, and is contrary to the attitude of past precedents. The root of the legal principle that the buyer’s possession suspends the statute of limitations on the right to claim ownership transfer registration lies in the 1976 unanimous decision above.

In that ruling, ‘delivery and use profit’ rather than ‘possession’ is considered as the reason for excluding the application of the statute of limitations, and the current precedent that uses ‘possession’, which has many problems, as a reason for suspending the statute of limitations for the right to claim registration of ownership transfer I think attitudes need to be reconsidered.