(b) Requirements for prescriptive acquisition of traffic area;

B. Article 294 of the Civil Act provides that the provisions of Article 245 of the same Act shall apply mutatis mutandis only to cases where servitude continues and express. Therefore, in order to acquire the passage area upon the expiration of the acquisition period for easement due to possession, the situation where the owner of the dominant land opens a passage on the servient tenement and uses the passage shall continue for the period stipulated in Article 245 of the same Act.

The costs of appeal are assessed against the plaintiff.

The court below held that, even if the plaintiff possessed the land of this case (road 1 omitted) and completed the prescriptive acquisition on March 30, 1954, if he did not complete the ownership transfer registration by December 31, 1965 pursuant to Article 10 of the Addenda of the Civil Act, the ownership is lost and there is a claim for ownership transfer registration due to prescriptive acquisition. Thus, unless the plaintiff has completed the above ownership transfer registration, the court below determined that the plaintiff's primary argument seeking the confirmation of whether the land of this case is owned by the plaintiff is without merit.

The theory is that the acquisition of ownership by possession of real estate belongs to the so-called original acquisition as the acquisition of real right under the provisions of law. However, Article 245 of the Civil Act provides that the provisional registration as the requirements for the acquisition of ownership of real estate by possession and Article 10 (3) of the Addenda of the same Act provides that even in a case where real right is acquired by the expiration of prescription prior to the enforcement date of this Act, the acquisition of ownership of real estate by the completion of prescription prior to the enforcement date of the Civil Act shall lose its effect unless it is registered within 6 years prior to the enforcement date of this Act. In light of the above, the acquisition of ownership of real estate by the completion of prescription prior to the enforcement date of the Civil Act does not affect the validity arising from the former Act pursuant to the proviso of Article 2 of the Addenda of the Civil Act even after the enforcement date of the Civil Act, and it cannot be deemed that Article 187 of the Civil Act, which differs from the requirements, is not applicable (see, e.g., Supreme Court Decision 65Da13885, Aug. 222, 1965).

The judgment of the court below which seems to have been identical to this purport is just and acceptable, and on the premise that Article 187 of the Civil Act applies to the effect of acquiring ownership of the land of this case due to the completion of prescription prior to the enforcement date of the Civil Act, it cannot be accepted to criticize the judgment of the court below that there is an error of law by misunderstanding the legal principles under Article 10 of the Addenda

2. Determination on the ground of appeal No. 2

A. The court below determined as follows: (a) at the time of March 30, 1934 where the road was constructed on the land of this case, it was not owned by the plaintiff as the ownership of Japanese and the deceased non-party 1, who was the deceased non-party 1, at the time when the road was constructed on the land of this case; (b) at around March 30, 1985, the plaintiff asserted that the plaintiff occupied the road as the road for twenty (20) years from March 30, 1934 to the Daejeon District Court at around twenty (20) years since the plaintiff won the lawsuit claiming ownership transfer registration on the land of this case and the judgment was finalized after winning the lawsuit for ownership transfer registration on March 30, 1954, ( Address 2 omitted) was nationally owned; and (c) at the time of the commencement of possession of the land of this case, it cannot be deemed that the plaintiff did not own the land of this case for the convenience of the land of this case for the implementation of the procedure for ownership transfer registration on the land of this case.

B. However, as determined by the court below, in case where the Plaintiff occupied a road between March 30, 1934 and 20 years from March 30, 193, and acquired the ownership of real estate upon the expiration of the acquisition period of real estate ownership due to possession on March 30, 1954, the effect of acquiring the ownership pursuant to Article 247 of the Civil Act is retroactive to March 30, 1934, which is the time when possession was commenced. Thus, it should be viewed that the Plaintiff constructed a road on the instant land at that time, or occupied and used the instant land as a road for 20 years thereafter.

Therefore, inasmuch as the Plaintiff opened a road on the instant land at the time of commencing the occupation of a road on March 30, 1934 (road address 3 omitted), and continuously occupied and used the instant land for twenty (20) years from that time, the mere fact that the Plaintiff was not the owner of a road claiming to be the dominant land at the time of the commencement of the Plaintiff’s occupation of the instant land, denying the acquisition of a traffic area right due to possession of the instant land should be deemed to have been erroneous or unreasonable.

In addition, according to the records, the plaintiff alleged that the road 750 square meters at 750 square meters from July 11, 1989 stated at the 14th date for pleading of the claim of this case is the dominant station of the land of this case, according to the application for partial correction of the claim of this case as stated by the court of first instance. If so, the court below should have ordered the plaintiff to clarify what part of the land of this case is the dominant station of the land of this case, such as ( Address 2 omitted) and ( Address 3 omitted) and ( Address 4 omitted), and to clarify whether the plaintiff's conjunctive claim of this case exists.

C. Meanwhile, examining the location and surrounding circumstances of the instant land and (road 3 omitted) roads and (road 4 omitted) roads based on related evidence and records, it is difficult to readily conclude that the instant land is directly adjacent to (road 3 omitted) roads or (road 4 omitted) roads and (road 4 omitted) roads are separated from (road 2 omitted) roads or (road 4 omitted) roads (road 2 omitted), the (road 3 omitted), the (road 4 omitted), the (road 3 omitted), and the (road 4 omitted) roads are adjacent to the west even if the instant land is not the land, using the instant land as a road (road 2 omitted) roads and (road 4 omitted) roads, and there is no other evidence to find that the lower court did not have any contrary effect on the ownership of the instant land, as seen above, there is no error in the misapprehension of legal principles as to the retroactive effect of the ownership of the instant land between the dominant land and the dominant land.

In addition, Article 294 of the Civil Act provides that "the provisions of Article 245 shall apply mutatis mutandis only to cases where the servitude is continued and expressed." Thus, in order to acquire the passage area due to the expiration of the acquisition period of the servitude due to possession, the owner of the dominant land is required to establish a passage on the dominant estate owned by another (see, e.g., Supreme Court Decisions 66Da2305, 2306, Sept. 6, 196; 70Da72, 773, Jul. 21, 1970; 78Da2482, Apr. 10, 1979). If a road adjacent to the land of this case was owned by Japan at the time of the construction of the road on the land of this case and became a national property thereafter, the owner of the dominant land of this case can not be deemed to possess the land of this case as the owner of the road of this case.

Therefore, the court below's conclusion that the plaintiff's conjunctive claim seeking the implementation of the procedure for registering the establishment of servitude, which was based on possession of the land of this case, cannot be seen as justifiable. Thus, we cannot accept the conclusion of the court below's decision that there was an error of law by misunderstanding the legal principles as to the traffic area or Article 291, 294, or 247 of the Civil Act.

3. Determination on the ground of appeal No. 3

In short, with respect to roads (road address 3 omitted) or roads (road address 4 omitted) in the vicinity of the instant land, the Supreme Court rendered a final and conclusive judgment recognizing the acquisition of the ownership of real estate due to possession, even though the instant case is the same. The mere fact that only the instant land is not deemed owned by the Plaintiff is contrary to the principle of equity. However, the lower court cannot be deemed to have violated the principle of equity in the application of the law, and there is no reason for this.

4. Therefore, the plaintiff's appeal is dismissed, and the costs of appeal are assessed against the plaintiff who has lost. It is so decided as per Disposition by the assent of all participating Justices.

Justices Yoon Jae-ho (Presiding Justice)