[2] In a case where the State and a local government did not submit a defense of prescriptive acquisition regarding the land occupied and used by changing the land category into a road, ditch, bank, or river, but did not submit all materials to the effect that the procedure for acquiring public property, such as purchase or donation, was taken at the time of commencement of occupancy, the case holding that the court below erred in the misapprehension of legal principles, which received a defense of prescriptive acquisition by the State, etc. without deliberation as to whether the relevant land was destroyed due to the loss of cadastral record

[2] In a case where the State and a local government did not submit a defense of prescriptive acquisition regarding the land that was occupied and used by changing the land category into a road, ditch, bank, or river, but did not take the procedure of acquiring public property such as purchase or donation at the time of commencement of possession, the case holding that the court below erred in the misapprehension of legal principles on the ground that the possibility of acquiring ownership was affirmed on the ground that there was no substantial relationship between the State and the local government’s independent possession presumption and the fact that the land was incorporated into public property without a specific examination as to whether the land in question was destroyed or lost, such as the land cadastre, and the details thereof

1. According to the reasoning of the judgment of the court of first instance and the reasoning of the judgment of the court of first instance cited by the court below, the court below acknowledged that the real estate registration register on each land listed in the separate sheet of the judgment of first instance (hereinafter “each land of this case”) was the owner of Nonparty 1, 2, and 3, who is the fleet of the plaintiffs, and the defendants changed the land category of each land from November 1, 1940 to March 30, 1973 to the road, ditch, bank, river, etc., and thereafter occupied and used each land of this case from that time. Accordingly, the court below rejected the plaintiffs’ assertion as follows, and dismissed the plaintiffs’ claim for the return of unjust enrichment of this case.

In other words, the defendants' assertion that the presumption of possession was broken as they occupied each of the above lands without the consent of the non-party 1, 2, and 3 or without the consultation procedure at the time of the commencement of possession of each of the above lands. The defendants did not seem to have raised an objection or demand for compensation with regard to each of the above lands after a considerable period of time from the commencement of possession and use of each of the above lands by road, ditch, river, bank, etc., and the plaintiffs' predecessors or the plaintiffs did not have any trace of objection or demand for ownership transfer registration in the name of the non-party 3 at around 1985. On November 1, 1940, the change of land category into a road has gone through a lot of national change, such as six and twenty five pages, and it is difficult to expect that the data related to the source of possession right of each of the above lands will be kept normally, and in light of the pertinent provisions such as shipbuilding road at the time, the defendants cannot be ruled out to have lawfully acquired each of the above lands through the procedure.

2. However, we cannot accept the above judgment of the court below.

A. If the nature of the source of possessory right of real estate is not clear, the possessor shall be presumed to have occupied the real estate in good faith, peace, and public performance with his own will under Article 197(1) of the Civil Act. However, in cases where it is proved that the possessor occupied the real estate owned by another person without permission despite the knowledge of the absence of legal requirements such as a juristic act which may cause the acquisition of ownership at the time of the commencement of possession, the possessor shall be deemed not to have an intention to reject the ownership of another person and hold possession. Thus, the presumption of possession with intention to own is broken (see Supreme Court en banc Decision 95Da28625 delivered on August 21, 1997). The same applies to cases where the local government or the State arbitrarily incorporated the private land into a road without a title to possess the land for public use as stipulated in the Local Finance Act or the State Property Act (see Supreme Court Decision 209Da32553 delivered on September 10, 2009).

However, even if the State or a local government fails to submit a document regarding the fact that it has taken the procedure for acquiring the pertinent land, it cannot be readily concluded that the State or a local government occupied the relevant land with the knowledge that the cadastral record, etc. was destroyed by a disturbance of 6/25 or no other reason exists and thus, the State or a local government was registered as the owner in the cadastral record, etc. In light of the purpose and purpose of occupation, if it is deemed that the possibility that the State or the local government lawfully acquired the ownership as a result of the procedure for acquiring the public property at the time of the commencement of occupation can not be ruled out, it is difficult to view that the State or the local government was unable to prove that it occupied the land without permission by being aware of such circumstance without the legal requirements for acquiring the ownership, and thus, the presumption of autonomous possession of the relevant land cannot be reversed solely on the ground that the State or the local government did not submit a document about the procedure for acquiring the ownership of the land (see Supreme Court Decisions 2005Da33541, Dec. 9, 2007).

B. In this case, the Defendants asserted that the land category of the instant case began between November 1, 1940 and March 30, 1973 due to the change of the category of a road, ditch, bank, river, etc., and that they did not submit any objective data to support the fact that they had taken the procedure to acquire public property under the State Property Act, etc. at the time of purchase or donation, etc., or the Local Finance Act, etc., or that they had taken the procedure to acquire public property under the Local Finance Act, etc., the lower court affirmed the possibility of acquiring the Defendants’ ownership only based on the circumstance that the Defendants had no substantial relationship with the process to incorporate the said land into public property, by avoiding a clear fact-finding as to the fact that the cadastral record at the time of the commencement of possession and use of each of the instant land was destroyed due to the disturbance 6/25, etc.

However, barring any special circumstance, barring any special circumstance, the Defendants are bound to have occupied and used each of the instant land without permission without undergoing the procedure for acquiring public property under the State Property Act or the Local Finance Act, and thus, the presumption that the Defendants occupied each of the instant land with their intent is broken, and the burden of proving the existence of special circumstances to affirm the possibility of acquiring the Defendants’ ownership should be deemed to exist in the said public record, notwithstanding the entry in the public record.

C. Therefore, the court below should first examine and confirm whether the cadastral record, such as the land cadastre, was destroyed and confirmed, and then examine individually and specifically the particulars of the land of this case, including the road, ditch, bank, river, etc., and determine whether the Defendants acquired the property for public purposes according to the procedures prescribed in the State Property Act or the Local Finance Act at the time of occupation and use of each of the land of this case as a road, etc., and accordingly, should have determined whether the presumption of possession with respect to each of the land of this case is maintained. However, the court below failed to exhaust all necessary deliberations as to the above circumstances, and it was not enough to estimate the possibility of the Defendants’ acquisition with respect to the whole of the land of this case, and received the defense of the prescriptive acquisition. The court below erred by misapprehending the legal principles on the presumption of possession with respect to the presumption of possession with respect to the real estate possession, which is the requirements for the prescription of possession with respect to the real estate possession, thereby affecting the conclusion of the judgment. The ground of appeal assigning this error is justified.

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Ahn Dai-hee (Presiding Justice)