2차 점유취득시효기간 중 소유권이 변동된 경우 시효완성자의 법적 지위 : 대법원 전원합의체 2009. 7. 16. 선고 2007다15172, 15189 판결 = A Legal Status of the Person who has Completed a Secondary Acquisitive Prescription by Possession, when Ownership of the Real Estate had been Transferred in the Secondary Prescription Period -the Supreme Court Decision 2007DA15172, 15189 Delivered on Jul

부동산 점유취득시효 기간 중 소유권이 이전된 경우의 법적 지위를 다룬다.

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.

[사안의 개요 및 소송의 경과] Ⅰ. 序言 Ⅱ. 부동산점유취득시효 완성의 효과 Ⅲ. 2차 점유취득시효기간 중 소유권이 변동된 경우 시효완성자의 법적 지위 Ⅳ. 結語 참고문헌 Abstract