취득시효에서의 점유, 그리고 등기청구권의 소멸시효 -대법원 2023. 8. 31. 선고 2023다240428, 240435 판결을 둘러싼 고찰-

초록

According to the Supreme Court's ruling, when a person acquires possession of real estate by purchasing it again from the buyer, the first buyer’s right to request the transfer of ownership is not subject to the statute of limitations. In contrast, when a person purchases real estate from someone who has completed the possession acquisition period but has not yet completed the ownership transfer registration, the Supreme Court maintains the stance that the statute of limitations for the request of ownership transfer registration begins to run from the time the person who completed the possession acquisition loses possession. It might seem unjust, that the precedents lead to differing conclusions at each case regarding whether the statute of limitations applies to the right to request registration. However, after reviewing several Supreme Court rulings, it became clear that while an unregistered buyer of real estate is granted inherent disposal rights over the purchased property even before the ownership transfer registration, this is not the case with acquisitive prescription, where such circumstances are not allowed. Although there are various opinions on whether it is still necessary to protect buyers who acquire real estate without registration, there is also merit to the opposing views, especially considering that it has been half a century since the Civil Code adopted the establishment requirements system for the transfer of property rights. However, in light of the evaluative consistency with a series of precedents concerning unregistered real estate buyers, it is deemed appropriate to uphold the prior stance regarding the statute of limitations on the buyer’s right to request registration. In cases involving the acquisition of real estate through possession prescription, it may be persuasive to adopt a different legal reasoning, provided the prescriptive possessor is not granted the same established status as the real estate buyer. Nevertheless, the inconsistent application of legal reasoning in Supreme Court rulings remains an ongoing issue.

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