[2] In a case where it is proved that the possessor occupied the real estate owned by another person without permission knowing the existence of the legal act or any other legal requirements which may cause the acquisition of ownership at the time of commencement of possession without permission, whether the presumption of possession with intention to hold it shall be reversed (affirmative)

[3] The case holding that the presumption of possession with autonomy cannot be broken solely on the ground that the local government which had completed registration of preservation of ownership of forest and field and commenced possession cannot assert or prove the source of possession right

[2] According to Article 197(1) of the Civil Act, the possessor is presumed to have occupied the real estate owned by another person in peace and openly. However, the possessor's 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, in a case where it is proved that the possessor illegally occupied the real estate owned by another person even though he/she was aware of the absence of the legal requirements such as juristic act or any other legal requirements at the time of the commencement of the possession, barring any special circumstances, the possessor shall be deemed to have rejected the owner's ownership and has no intention to occupy the real estate. Thus, the presumption of the possessor's possession is broken.

[3] The case holding that the presumption of possession independently cannot be broken solely on the ground that the local government, which completed registration of preservation of ownership of forest and field and commenced possession, did not assert or prove the source of possession right.

1. Regarding ground of appeal No. 1

In a case where there is no statement that "state", "state", and "state" is corrected and corrected as "state" in the column of state-owned or cause of the forest survey department prepared prior to the enforcement of the former Joseon Decree (Ordinance No. 5 of May 1, 1918, and the name of the private person was entered in the forest survey division, and the owner or relative column was corrected as "the above state" and "no cadastral guidance is made" in the remarks column, the above private person shall be deemed to have received the situation of the forest (see Supreme Court Decision 96Da16506, Jul. 24, 1998; Supreme Court Decision 96Da16506, Jul.

In light of the above legal principles and records, the court below held that the non-party should be deemed to have received the assessment of the forest land of this case on October 15, 1917, in view of the fact that the forest survey division on the forest land of this case entered the owner or relative column as the "foreign person" and entered as the "State stage" in the "State-owned civilian classification column," and that the non-party should be deemed to have received the assessment of the forest land of this case on October 15, 1917, and there is no error of law by misapprehending the legal principles as to the capacity of presumption of rights of the

2. Regarding ground of appeal No. 2

According to the reasoning of the judgment below, the court below rejected the defendant's assertion that, on April 21, 1964, Yangyang-gun had completed the registration of ownership preservation under the Act on the Establishment of Yangyang-gun and the Alteration of Jurisdiction, etc. (Act No. 3169, Dec. 28, 1979) as to the forest of this case on April 1, 1980, under which Yangyang-gun was established and the forest of this case was incorporated under the jurisdiction of Yangyang-gun, and that, on May 1, 1981, the remaining Yang-gun had completed the registration of ownership transfer on the ground of succession of right on April 1, 1980, on the ground that the above registration office was 18051, the above registration office received the above ownership transfer registration on the ground of the defendant's possession of the forest of this case on April 21, 198, the heir of Yangyang-gun-gun was the defendant's right and duty to own the forest of this case on the remaining 14th.

According to Article 197(1) of the Civil Act, the possessor is presumed to have occupied as his/her own will in a peaceful and public performance. On the other hand, the issue of whether the possessor is an owner or an owner without an intention to own shall not be determined by the internal deliberation of the possessor, but shall be determined externally and objectively by the nature of the title giving rise to the acquisition of possession or by all circumstances related to the possession. Therefore, in a case where the possessor proves that he/she occupied another person's real estate without an intention to own it, even though he/she is aware of the absence of such legal requirements without an intention to own it, the possessor shall be deemed to have rejected another person's ownership and did not have an intention to occupy it (see, e.g., Supreme Court en banc Decision 97Da37661, Mar. 16, 200). According to the record, it is difficult to prove that the ownership preservation of the forest was not established before the commencement of the legal act as the owner's possession of the forest in this case with no intention to own ownership.

Supreme Court Decision 200Da64472 Decided March 27, 2001 invoked by the court below, where a local government or the State without a specific title to possess the land, such as its own expenses or the collection of contributions, was incorporated into a road site, the presumption of autonomous possession is broken, and it is not appropriate to be invoked in the instant case where the Yangju-gun has completed registration of preservation of ownership of the forest of this case (the presumption of registration of preservation of ownership of a snow shed is broken out by the person other than the title holder of the preservation registration) and the possession of the forest of this case was commenced.

Therefore, the judgment of the court below which rejected the defendant's defense of the prescriptive acquisition without examining whether or not the defendant commenced possession of the forest of this case, based on the judgment that the defendant's presumption of independent possession of the forest of this case was broken, is erroneous in the misunderstanding of legal principles as to the presumption of independent possession, or in failing to exhaust all necessary deliberations, and therefore, the appeal on this point is justified.

3. Conclusion

Therefore, the judgment of the court 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 Yang Sung-tae (Presiding Justice)