beta
대법원 1990. 3. 27. 선고 89다카16840 판결

[토지소유권이전등기말소등기][공1990.5.15.(872),956]

Main Issues

In cases where part of the land in possession is incorporated into the road before the expiration of the period for acquisition by prescription and the possessor receives land compensation, whether possession is forfeited;

Summary of Judgment

If part of the land in possession was already incorporated into the road before the expiration of the period of prescriptive acquisition and the possessor was paid the compensation for the land, the possession of this part of the land was lost at that time, barring special circumstances, barring any special circumstance. Therefore, the ownership of this part shall not be acquired by prescription.

[Reference Provisions]

Articles 192 and 245(1) of the Civil Act

Plaintiff-Appellant

Attorney Lee Sung-sung et al., Counsel for the defendant-appellant

Defendant-Appellee

Freeboard

original decision

Gwangju District Court Decision 88Na3266 delivered on May 25, 1989

Text

Of the original judgment, the part concerning 371-4, 668 square meters in Jeon-nam, Hapong-gun, Hapong-gun, Chungcheongnam-gun, shall be reversed, and the case shall be remanded to the Panel Division of the Gwangju District Court.

Reasons

As to the Grounds of Appeal:

According to the evidence adopted by the court below, the non-party Hong Jong-ju purchased on February 17, 1963 371 at the same place as the land of this case before the division from the non-party Kim Young-chul and occupied 371-4 of the same place, which is part of the land divided into 371-1, 202, and continuously cultivated 30 square meters. The above Lee Young-ju occupied the building at the above 30 square meters, and the above 30 square meters. The defendant purchased on February 10, 1971 the above 371 square meters, including the above 30 square meters, from the above 371 square meters, and occupied on the above 197 square meters of the above 371 square meters of the above 371 square meters of the above 197 square meters of the above 371 square meters of the above 197 square meters of the above 197 square meters of the above 197 square meters of the above 1971 square meters of the above land.

However, as the reasoning of the judgment in the original judgment, if part of the land of this case was already assigned to the road around 1979 and the defendant was paid the compensation for the land, the defendant's possession of this part of the land has already been lost, barring special circumstances. Thus, the original judgment recognizing the prescriptive acquisition of the whole land without specifying the location and scope of this part cannot be deemed to have erred by failing to give priority to the reasoning or incomplete deliberation. Even according to the records, the defendant himself/herself was 371-4 and 202 on September 11, 1980 at the same location of the land of this case, 113 square meters, 740 square meters at the same 460 square meters at the same time, 895 square meters at the same 70 square meters, and 197 square meters at the same 440 square meters, and the defendant did not receive the remainder of the above part of the land of this case after being occupied by the defendant's new witness on the road of 1979.

Nevertheless, the court below's decision that recognized that the defendant continued to possess the above part of the land and concluded that the prescription period for the above part of the land was completed on February 17, 1983 after 20 years from February 17, 1963 that the whole possessor of the defendant started to possess the above part of the land, does not constitute a misunderstanding of legal principles as to the prescription period for acquisition of real estate or a violation of the rules of evidence or incomplete deliberation, which affected the conclusion of the judgment, and it is reasonable to discuss that this constitutes a ground for reversal under Article 12 of the Act on Special Cases concerning the Promotion,

In this regard, among the original judgment, the part concerning 1, 371-4, 668 square meters (202 square meters) shall be reversed, and the case shall be remanded to the Panel Division of the Gwangju District Court which is the original judgment, in order to re-examine the case, and it is so decided as per Disposition by the assent of all Justices who reviewed the case.

Justices Kim Yong-ju (Presiding Justice)

참조조문

- 민법 제192조

- 민법 제245조 제1항 (위헌조문)

본문참조조문

- 소송촉진등에관한특례법 제12조

원심판결

- 광주지방법원 1989.5.25. 선고 88나3266 판결