[2] The case holding that the presumption of independent possession as to the share of the site by the sectional owner of an apartment building was reversed

[2] The case holding that, in light of the fact that the buyer of an apartment and his successor did not have any hindrance for a long time since the acquisition of the divided ownership of an apartment, it can be seen that the possessor did not usually take the place if the possessor was the actual owner or did not act to have taken place as a matter of course, and that the possessor did not have an intention to refuse the ownership of another person, and that the possessor did not have an intention to occupy it, it is proved that there was a circumstance to view that the apartment is a case where the possessor did not have an intention to occupy it as a matter of course, and that at the time of the initial sale of the apartment, it is necessary to separate procedures for registration of ownership transfer of the apartment building and the site for the acquisition of the complete wall including the ownership share of the site, and that the buyer did not complete registration of ownership transfer only for the building subject to the divided ownership but did not have received the ownership transfer transfer transfer, and that as a result, all the transferee of the apartment were aware of the fact that the ownership transfer of the apartment building did not have any share of the site, it cannot be seen as a legal act or evidence.

1. The measure of the court below

The lower court rejected the Plaintiff’s assertion that the first buyer, etc. occupied the instant site as the site of the instant apartment for twenty (20) years in peace and public performance with the intention to own it, and as an ombudsman acquired prescription in proportion to the ratio of each section of exclusive ownership of the instant apartment, and that the presumption of autonomous possession was broken out, on the ground that the circumstances alleged by the Plaintiff alone are insufficient to recognize it.

2. Determination

However, it is difficult to accept the lower court’s decision that the circumstances alleged by the Plaintiff alone are insufficient to recognize that the presumption of possession with autonomy was broken.

The issue of whether the possessor is an owner or an owner without an intention of possession is not determined by the internal deliberation of the possessor, but by the nature of the title that caused the acquisition of ownership or by all circumstances related to the possession. Thus, the objective circumstance is that the possessor cannot be viewed as the possessor’s possession with the intention of exercising exclusive control as his own property by excluding the ownership of another person, or that the possessor does not act with the actual owner as a matter of course. In other words, if it is proved that the possessor did not have the intention of rejection of another’s ownership and without the intention of possession, the presumption is broken, and if it is proved that the possessor did not have the intention of possession, it should be determined by the internal deliberation of the possessor, and if it is proved that the possessor did not possess the real property with the knowledge of the absence of such legal requirements, it shall be presumed that the possessor did not have any special intention of possession as his own property (see, e.g., Supreme Court en banc Decision 97Da29859, supra.).

In light of the above legal principles, as the Plaintiff asserted, the buyer of the instant apartment and the Defendants succeeded to the buyer of the instant apartment in around 1976 did not request the Nonparty or the Plaintiff to register the transfer of the ownership of the instant apartment site for a long time even though there was no impediment from the time of the instant lawsuit since the acquisition of the sectional ownership of the instant apartment in around 1976. In addition, even though the Plaintiff provided the instant site as a security for a large amount of obligation, the Plaintiff did not raise any objection, and even if ○○ Development, operated by the Plaintiff, agreed to operate part of the instant apartment site as a parking lot by the Plaintiff, including the Defendants, and even if some occupants paid parking fees, it can be deemed that the circumstance was proved that the occupant’s act would not have been ordinarily done if the possessor was the actual owner or would not have been done if he was the owner.

In addition, in full view of the facts and records acknowledged by the court below, since the apartment of this case was first sold in around 1976 prior to the enactment of the "Act on the Ownership and Management of Aggregate Buildings", separate procedures for the registration of ownership transfer regarding the building and site were required for the acquisition of completely-built apartment including the ownership share in the site. The buyer only completed the registration of ownership transfer concerning the building which is the object of partitioned ownership, and all of those who acquired the apartment of this case did not acquire the ownership transfer as to the share in the site. As a result, all of them followed only the registration of ownership transfer concerning the building in question, which is the object of divided ownership transfer, and they did not indicate only the building which is the object of divided ownership in the indication of real estate in the indication of real estate for the purpose of sale in lots as used at the time of initial sale in lots, but also did not indicate the share in the site, and it is difficult to view that there were 70 legal requirements for the Defendants to have acquired the ownership of the above apartment of this case as being occupied by others at the time of the first sale in lots or by transfer.

Nevertheless, the court below erred by misapprehending the legal principles on the presumption of possession with autonomy and the extinction thereof, as long as such circumstances alone are insufficient to recognize that the presumption of possession with autonomy has been broken, which affected the conclusion of the judgment.

3. Conclusion

Therefore, the judgment below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jeon Soo-ahn (Presiding Justice)