[소유권이전등기][공2006.1.15.(242),114]
[1] Where the presumption of possession with respect to the prescriptive acquisition is reversed
[2] The case holding that where the registry and the cadastral record of the land possessed by the State were destroyed by a disturbance, the presumption of possession with autonomy cannot be deemed to have been reversed even if the State failed to submit the documents related to the procedure for acquiring the land
[1] If the nature of the source of possessory right of real estate is not clear, the possessor shall be presumed to have occupied the possessor in good faith, reputation, and public performance by his own will under Article 197(1) of the Civil Code. The presumption that the possessor has occupied the real estate by means of title, which appears to have no intention to own in its nature, is broken down only when it is proved that the possessor acquired the possession on the basis of title, which appears to have no intention to own, or when it is proved that the possessor does not normally take an action if the possessor did not act in a manner that would have taken place if he did not act as a matter of course, such as the possessor’s failure to act in an external and objective manner.
[2] The case holding that the presumption of autonomous possession shall not be reversed on the ground that the State, while the registry and cadastral record were destroyed by a disturbance of 6/25 and the land restored only in the cadastral record was occupied for the purpose of military units, camping hospitals, the Korea Forest Service, etc., and even until now, since the State did not submit documents related to the procedure for acquiring land, it is difficult to deem that the State occupied each land without permission, even though the cadastral record, etc. on the land was destroyed by a disturbance, in light of the fact that the cadastral record, etc. on the land was destroyed by a disturbance, and that it was proved that the State occupied each land without permission even though it was well aware that there was no legal requirement for acquiring ownership, and that the State did not go through the procedure for reversion of inherited
[1] Articles 197(1) and 245(1) of the Civil Act / [2] Articles 197(1) and 245(1) of the Civil Act
[1] Supreme Court Decision 98Da10618 delivered on June 23, 1998 (Gong1998Ha, 1950) Supreme Court Decision 99Da56765 delivered on March 24, 200 (Gong2000Sang, 1042) Supreme Court Decision 9Da72743 delivered on February 26, 2002 (Gong2002Sang, 777)
Plaintiff 1 and two others (Attorney Park Jae-jin, Counsel for the plaintiff-appellant)
Korea
Seoul High Court Decision 2004Na84711 delivered on May 24, 2005
All appeals are dismissed.
The costs of appeal are assessed against the plaintiffs.
If the nature of the source of possessory right of real estate is not clear, the possessor is presumed to have occupied in good faith, plenary and public performance by his/her own will pursuant to Article 197(1) of the Civil Act. In the prescriptive acquisition of real estate, only when it is proved that the possessor acquired the possession on the basis of title which appears to have no intention to own in its nature, or when it is proved that the possessor did not act normally if the possessor did not act, or if he/she did not act normally, he/she would have taken on the basis of external or objective view, such as in cases where he/she did not act normally and objectively that the possessor did not have an intention to refuse the ownership of another person.
The court below determined that the defendant acquired each of the above lands with the completion of the prescription of possession on the date when 20 years elapsed from the date of possession, on the following grounds: (a) since the register and the cadastral record of the six parcels of this case, which were considered in the plaintiffs' name in the plaintiffs' name, were all destroyed in the column of 6/25, and were restored only to the cadastral record on February 1, 1958; and (b) since the defendant occupied the land of this case for each of the following purposes: (c) since the land of this case was possessed for military units, Ya Hospital, and the Korea Forest Service, the land of this case; and (d) the defendant does not clearly state the right to acquire each of the land of this case; (e) although the defendant did not clearly state the right to acquire the land of this case, it cannot be readily concluded that
In light of the above legal principles and records, the above recognition and determination by the court below is just, and even if the defendant, who is the state, failed to submit documents related to the procedure for acquiring each of the lands of this case, it is difficult to view that the defendant occupied each of the lands of this case without permission, even though the cadastral record, etc. on each of the lands of this case was entirely dismissed, in light of the fact that the defendant occupied each of the lands of this case without permission, even though he did not meet the legal requirements for acquiring ownership, and the presumption of possession without permission is not reconvened because the defendant did not go through the procedure for reverting to the inherited property when the inheritor is nonexistent or the inheritor is unknown.
In the same purport, the court below determined that the presumption of possession by the defendant with respect to the land in this case is not reversed, and it is just to recognize the prescriptive acquisition, and it cannot be said that there were errors as alleged in the grounds of appeal.
Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Park Si-hwan (Presiding Justice)