중복등기와 점유취득시효 = Acquisitive Prescription and Duplicated Registration

다국어 초록 (Multilingual Abstract)

There is a room for doubt about whether or not Korean Supreme Court case has binding force. In Article 7 of Korean Court Organization Act, the judgment authority of the Supreme Court shall be exercised by the collegiate panel composed of not less than two-thirds of all the justices of the Supreme Court with the Chief Justice of the Supreme Court presiding. Where it is deemed necessary to modify such opinion on the application of the interpretation of the Constituion, Acts, administrative decrees, and regulations, as was formerly decided by the Supreme Court. In Article 8 of Korean Court Organization Act, any decision made in a judgment of a higher court shall bind the court of lower instance with respect to the case in question. Korean Supreme Court case does not bind de jure. But Korean Supreme Court case shall bind the court of lower instance and itself de facto. Therefore because Korean Supreme Court case binds force, it will have possibility of being maintained in future. I think that Korean Supreme Court case is regarded as resources of Korean Civil Law. Case study holds a key post in Korean Civil Law study in the Korean Law School system. The ratio decidendi of the Korean Supreme Court case is the point in a case which determines the judgment or the principle which the case establishes. In other words, legal rule derived from, and consistent with, those parts of legal reasoning within a judgement on which the outcome of the case depends. Unlike obiter dicta, the ratio decidendi is, as a general rule, binding on courts of lower and later jurisdiction-through the doctrine of stare decisis. By the way, Korean Supreme Court produces a little misunderstanding ratio decidendi with an inaccurate description now and then. Supreme Court Decision 93Da20177,20184 Decided Sep. 20, 1996 and Supreme Court Decision 2007Da63690 Decided Feb. 14, 2008 declared the latter of the duplicated registration becomes invalidity in such a case, the title holder of the latter does not claim acquisitive prescription. Supreme Court Decision 94Da30430 Decided Nov. 11, 1994 declared claim for acquisitive prescription is different from claim for duplicated registration, so that the title holder of the latter shall claim acquisitive prescription. In conclusion, the title holder of the latter does not claim that invalid latter registration is valid by reason of acquisitive prescription, so that the title holder of the former can claim cancellation of the latter registration. But the title holder of latter registration shall claim transfer of former registration by reason of acquisitive prescription as a counteraction.