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(영문) 대법원 1982. 5. 25. 선고 81다195 판결

[소유권보존등기말소][집30(2)민,51;공1982.8.1.(685) 601]

Main Issues

(a) Scope of application of Article 5 (2) of the State Property Act;

(b) Requirements for conversion into an independent possession of other owners;

Summary of Judgment

A. Article 5(2) of the State Property Act, which prohibits extinctive acquisition of State property, does not affect the validity of extinctive acquisition already completed prior to its enforcement.

B. In order to convert the possession into the possession with the intention of possession with a new title, the intention of possession must be expressed to the person who has occupied or possessed the other person with the intention of possession, and the registration on the register of the basic property of the surface alone cannot be deemed as an act of expressing the intention of ownership.

[Reference Provisions]

A. Article 5(2) of the State Property Act, Article 245 of the Civil Act. Article 197 of the Civil Act, Article 245 of the Civil Act

Plaintiff-Appellant-Appellee

Korea

Defendant-Appellee

Gyeong Forestry Corporation

Defendant-Appellant

Attorney Seocheon-gun et al., Counsel for the defendants

Judgment of the lower court

Seoul High Court Decision 80Na2259 delivered on December 18, 1980

Text

The appeal is dismissed.

The costs of appeal shall be borne by each appellant.

Reasons

1. The plaintiff's grounds of appeal are examined.

(1) On the first ground for appeal

The fact-finding of the court below's decision that Defendant Gwangju Forestry Co., Ltd. (hereinafter the defendant Daecheon Forestry Co., Ltd.) had completed the registration of ownership transfer for the part of the order (A), (c) of the real estate listed in the annexed Table 1 list of the court below's judgment on April 3, 1967 from the non-party inside, and acquired the ownership transfer for the first forest (hereinafter referred to as the "first forest of this case") with no fault in good faith and possession for ten or more years, is acceptable in light of the evidence of this case. The court below's finding of the court below that the afforestation was conducted above and occupied for ten or more years, and the theory points out. However, the court below did not interfere with the above fact-finding of the court below, but did not err in the rules of evidence or in the incomplete hearing.

The issue is groundless.

(ii)as to the assertion that the forest of this case is an administrative property among two points:

According to the reasoning of the judgment below, the court below rejected the testimony No. 23 (State Property Register) and the inquiry of the court below as to the testimony at the time of gambling for the witness of the court below and the fact-finding on the Administrator of the Korea Forest Service, which seems to conform to the plaintiff's argument that the forest No. 1 of this case is a permanent state forest under the Forestry Act and an administrative property under the State Property Act, and judged that the above forest land cannot be deemed a permanent state forest or an administrative property under the State Property Act, considering other evidences, the above forest land cannot be deemed a permanent state forest or an administrative property under the State Property Act, and it can be deemed as a non-permanent state forest under the State Property Act, and it is sufficiently acceptable to acknowledge the facts and there is no violation of the rules of evidence or any violation of the rules of evidence incomplete deliberation.

(3) As to the claim of interruption of extinctive prescription in the second point:

The peremptory notice of a claimant for non-judicial procedure cannot take effect under the law unless a judicial claim or strong method of interrupting prescription under Article 174 of the Civil Act is followed within six months from the date of the peremptory notice. According to the court below's lawful recognition, the plaintiff's peremptory notice was not taken within six months from November 8, 1976, the last day of the peremptory notice against the defendant Gwangju Forestry, so the plaintiff's peremptory notice does not have the effect of interrupting prescription from the beginning, and the defendant Gwangju Forestry shall have no effect of interrupting prescription from April 3, 1967, which started to occupy the first forest of this case as a medical negligence, with the transfer registration of ownership in its name, and it shall be deemed that it has been acquired by prescription on April 3, 197, which started to occupy the first forest of this case as a medical negligence. From May 1, 1977, which was after the prescriptive prescription has been completed, and it shall not be justified in the misapprehension of legal principles as to the effect of the statute of limitations of prescription as a State property within six months.

The issue is groundless.

2. We examine the grounds of appeal by the defendant Samsungcheon-gun.

(1) As to paragraph (1),

According to the reasoning of the judgment of the court below, the court below rejected the evidence consistent with the argument that the defendant Ycheon-gun received the real estate listed in the attached Forms 2 through 10 of the judgment of the court below (hereinafter the "the plaintiff 2 forest land of this case"), and rejected the above argument. In light of the records, the above evidence of the court below is sufficiently acceptable and there is no violation of the rules of evidence or incomplete deliberation.

We cannot accept the argument that criticizes the fact-finding that belongs to the exclusive jurisdiction of the court below.

(2) As to No. 2:

According to the court below's lawful determination, since the defendant Ycheon-gun started to possess the forest of the so-called "Yancheon-gun", including the forest of this case No. 2, which is a state-owned property, on January 1, 1938 after being leased from the Yancheon-gun, the possession cannot be deemed as the possession with the intent of ownership in view of the nature of the source of title. In order to convert the possession into the possession with the intention of ownership again with the new source of title, the non-party Ycheon-gun, the succeeding owner of the forest of this case, which is the object of the defendant Ycheon-gun, cannot be deemed to have expressed the intention of ownership solely on the ground that the non-party 2, the forest of this case, which is the object of the defendant Ycheon-gun, was registered in the register of basic property, and on this case, there is no record to view that the defendant Ycheon-gun or Dong-gun occupied the forest of this case with the intention of ownership, and there is no error in the misapprehension of legal principles.

Therefore, all appeals are dismissed, and the costs of appeal are assessed against each losing party. It is so decided as per Disposition by the assent of all participating judges.

Justices Kim Jung-soo (Presiding Justice) and Lee Jong-young's Lee Jong-young

심급 사건
-서울고등법원 1980.12.18.선고 80나2259
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