Open Decision Ledger · Civil obligations & remedies
A sub-purchaser's possession right under the original sale
Supreme Court, Aug. 14, 2025, 2025Da209930 (judgment)
No holding summary · checked against points at issue. The official text publishes no summary of the holding for this decision. The quotation and factors in this record are copied verbatim from the points at issue; the evidence for each axis is taken from the points at issue, the order and the reasons.
Case name: 건물인도
Official text on the National Law Information Center
Question
Where the purchaser of a unit in a building extension has not yet obtained registration of transfer of ownership but received the unit by delivery under the sale, and the sale right was then assigned to another, may the original owner recover that unit from the assignee on an ownership-based real right claim?
Holding
No, unless there are special circumstances. The Supreme Court held that a purchaser who has received the property by delivery under the sale contract holds the right to possess and use it by the effect of that contract even before registration, and that one who acquires the sale right from that purchaser acquires the same possession and use right. Absent special circumstances the seller cannot exercise an ownership-based real right claim against such an acquirer, so the court below erred in reading the law when it granted the plaintiff's claim for delivery on the ground that the assignee had not obtained the seller's approval or consent to the assignment.
Points at issue, verbatim
병이 아직 위 호실에 관한 소유권이전등기를 경료받지 않았더라도 분양계약의 이행으로 위 호실을 인도받은 때에는 분양계약의 효력으로 이를 점유·사용할 권리가 있고, 병으로부터 이를 양수한 정은 위 호실의 점유사용권을 취득하게 되므로, 특별한 사정이 없는 한 갑 회사는 정에 대하여 위 호실의 소유권에 기한 물권적 청구권을 행사할 수 없는데도
Unofficial English translation
even though C has not yet obtained registration of the transfer of ownership concerning the unit, where C has taken delivery of the unit in performance of the sales contract, C has the right to possess and use it by force of the sales contract, and D, who acquired the same from C, acquires the right to possess and use the unit, so that, absent special circumstances, A Corporation may not exercise a claim based on the real right of ownership of the unit against D; nevertheless
Disposition
Reversed and remanded Stated in the decision
원심판결을 파기하고, 사건을 서울동부지방법원에 환송한다.
Unofficial English translation
The judgment of the court below is reversed, and the case is remanded to the Seoul Eastern District Court.
Form of the test
Existing test applied Read from the decision
특별한 사정이 없는 한 갑 회사는 정에 대하여 위 호실의 소유권에 기한 물권적 청구권을 행사할 수 없는데도, 이와 달리 보아 갑 회사의 청구를 인용한 원심판단에 법리오해의 잘못이 있다고 한 사례
Unofficial English translation
absent special circumstances, A Corporation may not exercise a claim based on the real right of ownership of the unit against D; nevertheless the court below held otherwise and granted A Corporation's claim, and the determination of the court below contains an error of misapprehension of legal principles
Factors
- 분양계약 체결 권한을 위임받은 을 주식회사가 병에게
- 아직 위 호실에 관한 소유권이전등기를 경료받지 않았더라도 분양계약의 이행으로 위 호실을 인도받은 때에는 분양계약의 효력으로 이를 점유·사용할 권리가 있고
- 병으로부터 이를 양수한 정은 위 호실의 점유사용권을 취득하게 되므로
- 특별한 사정이 없는 한 갑 회사는 정에 대하여 위 호실의 소유권에 기한 물권적 청구권을 행사할 수 없는데도
Unofficial English translation
• B Corporation, which had been delegated with the authority to conclude sales contracts, sold to C
• even though C has not yet obtained registration of the transfer of ownership concerning the unit, where C has taken delivery of the unit in performance of the sales contract, C has the right to possess and use it by force of the sales contract, and
• D, who acquired the same from C, acquires the right to possess and use the unit, so that
• absent special circumstances, A Corporation may not exercise a claim based on the real right of ownership of the unit against D; nevertheless
Relation to precedent
Follows earlier decisions Stated in the decision
대법원 1998. 6. 26. 선고 97다42823 판결
Unofficial English translation
Supreme Court Decision 97Da42823 decided June 26, 1998
Decisions referred to
대법원 1998. 6. 26. 선고 97다42823 판결(공1998, 1968), 대법원 2001. 12. 11. 선고 2001다45355 판결(공2002상, 264)
Burden of proof
Not addressed Not in the decision
Open question and revisit condition
What special circumstances would allow the original owner to recover a unit from one who acquired the sale right and took delivery under it?
A remand judgment that finds or rejects special circumstances on these facts, including the effect of the rescission notice and the absence of a completion inspection, would show how far the possession right reaches. Any later decision revising the rule that a buyer who takes delivery acquires the right to possess and use before registration would also require this entry to be read again.
Cross-family AI independent reading & axis check
8 of 8 axes matched GPT-6 Astra (OpenAI, codex CLI) · 2026-10-24
A reader from another model family (GPT-6 Astra), given the official text but not the primary reading, agreed on all 8 axes.
Raw responses and comparison record: Protocol · Blind readings (JSONL) · Axis comparison (JSONL) · SHA-256 (JSON)
Lower-court contrast & scope of application
Lower-court reading vs. Supreme Court holding
Lower-court context: The Seoul Eastern District Court, in its judgment of 10 January 2025 (2023Na26051), ordered the defendant to deliver the unit to the plaintiff. It held that the defendant had no title to possess and use it, because the defendant, when taking an assignment of the sale right from the person to whom the unit had been sold, could not be regarded as having obtained the approval or consent of the seller, the plaintiff. The plaintiff was the owner-builder extending a building of one basement and three floors to one basement and six floors on land of 3,377.6 square metres in Gangdong-gu, Seoul, and the original acquirer of the extended part; by a memorandum of 30 November 1989 it entrusted a housing company with authority to conclude sale contracts for 1,620 pyeong of that part, under which the company was to pay the plaintiff KRW 800 million whether or not any unit was sold.
Supreme Court standard: The Supreme Court held that the court below had misread the law on the possession and use right of a buyer who receives property by delivery under a real estate sale contract, an error affecting its judgment. The outsider had bought the unit on 11 January 1990 from the housing company, which held the delegated authority from the plaintiff, and the defendant had acquired the sale right from that person on 26 August 2019 and was living in the unit after registering residence on 13 August 2021, so that the defendant had acquired the right to possess and use it. The Court also held that Supreme Court Decision 2000Da51216, on which the court below had relied, concerned the assignment of a claim for registration of transfer of ownership and was not apt, and remanded without deciding the remaining grounds, by the unanimous opinion of the Justices.
Distinguishing conditions
- A case in which special circumstances deprive the acquirer of the sale right of the right to possess and use the unit, since the Court's rule applies only where there are no such circumstances.
- A case in which the purchaser never received the property by delivery under the sale contract, since the right to possess and use arose from that delivery.
- A dispute over a claim for registration of transfer of ownership and its assignment, which the Court held to be a different matter from this case.
Record verification notes
Before relying on this decision, establish from the file that the person who sold on the sale right had himself received the unit by delivery under a sale concluded by a company holding delegated authority from the owner, and that the sale right passed to the present occupant. Then collect what the owner offers as special circumstances, including the notice of rescission of the memorandum delivered to the housing company on 16 January 1990 and the agreement of about July 1991 recognising the validity of units already sold in the company's name. Also note that the extension has not yet passed a completion inspection and no preservation registration has been made for it, and that the provisions referred to are Articles 186, 214 and 563 of the Civil Act.
From the official text
Points at issue
[1] 부동산의 매수인이 아직 소유권이전등기를 경료받지 않았으나 매매계약의 이행으로 부동산을 인도받은 경우, 매도인이 위 매수인으로부터 다시 부동산을 매수한 자에 대하여 부동산 소유권에 기한 물권적 청구권을 행사할 수 있는지 여부(소극) [2] 기존 건물을 증축하는 공사의 건축주로 증축 부분의 원시취득자인 갑 주식회사로부터 위 증축 부분에 관한 분양계약 체결 권한을 위임받은 을 주식회사가 병에게 위 증축 부분 중 특정 호실을 분양하였고, 병은 위 호실의 분양권을 정에게 양도하였으며, 이후 정이 소유권이전등기를 경료받지 못한 채 전입신고를 마치고 위 호실에 거주하고 있는데, 갑 회사가 정을 상대로 병이 정에게 분양권을 양도할 때 분양자의 승낙이나 동의를 받지 않아 정에게는 위 호실을 점유·사용할 권리가 없다며 위 호실의 인도를 구한 사안에서, 병이 아직 위 호실에 관한 소유권이전등기를 경료받지 않았더라도 분양계약의 이행으로 위 호실을 인도받은 때에는 분양계약의 효력으로 이를 점유·사용할 권리가 있고, 병으로부터 이를 양수한 정은 위 호실의 점유사용권을 취득하게 되므로, 특별한 사정이 없는 한 갑 회사는 정에 대하여 위 호실의 소유권에 기한 물권적 청구권을 행사할 수 없는데도, 이와 달리 보아 갑 회사의 청구를 인용한 원심판단에 법리오해의 잘못이 있다고 한 사례
Unofficial English translation
[1] Whether a seller may exercise a claim based on a real right in the real estate against a person who has purchased the real estate again from the purchaser, where the purchaser of the real estate has taken delivery of the real estate in performance of the sales contract although he/she has not yet obtained registration of the transfer of ownership (negative) [2] B Corporation, which had been delegated by A Corporation, the owner of the construction work to extend an existing building and the original acquirer of the extended portion, with the authority to conclude sales contracts concerning the extended portion, sold to C a specific unit within the extended portion, and C transferred the allocation right to the unit to D; thereafter D, without having obtained registration of the transfer of ownership, completed the report of change of residence and has been residing in the unit; in a case where A Corporation sought delivery of the unit from D on the ground that, at the time C transferred the allocation right to D, C did not obtain the consent or approval of the supplier and therefore D has no right to possess and use the unit, it was held that, even though C has not yet obtained registration of the transfer of ownership concerning the unit, where C has taken delivery of the unit in performance of the sales contract, C has the right to possess and use it by force of the sales contract, and D, who acquired the same from C, acquires the right to possess and use the unit, so that, absent special circumstances, A Corporation may not exercise a claim based on the real right of ownership of the unit against D; nevertheless the court below held otherwise and granted A Corporation's claim, and the determination of the court below contains an error of misapprehension of legal principles
Summary of the holding
The official text publishes no summary of the holding for this decision. The quotation and factors in this record are copied verbatim from the points at issue; the evidence for each axis is taken from the points at issue, the order and the reasons.
Order
원심판결을 파기하고, 사건을 서울동부지방법원에 환송한다.
Unofficial English translation
The judgment of the court below is reversed, and the case is remanded to the Seoul Eastern District Court.
Provisions referred to
[1] 민법 제186조, 제214조, 제563조 / [2] 민법 제186조, 제214조, 제563조
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