Law Firm LLC et al., Counsel for the defendant-appellant

Law Firm LLC et al., Counsel for the defendant-appellant

1. Case summary

According to the reasoning of the lower judgment and the record, the following facts are revealed.

A. On August 2, 1976, the Korea Trust Bank, Inc., was established as the Defendant by mergers with Seoul Bank and Han Bank on December 2, 2002, and foreign exchange banks on September 1, 2015, respectively (hereinafter “Defendant”). On February 28, 1969, the Defendant established the Korea Trust Bank, a subsidiary for the purpose of managing and operating infrastructure (hereinafter “Korea Trust Bank”).

B. On June 19, 1969, the Korea-Japan obtained permission from the Minister of Construction and Transportation for the construction of a fee-chargingd highway pursuant to Article 12 of the former Toll Road Act (amended by Act No. 2189, Jan. 1, 1970; hereinafter referred to as the "former Toll Road Act"), and around that time, the construction of the said expressway was commenced and approved for the use on December 29, 1969 (hereinafter referred to as the "the above expressway"). The road of this case consists of the road from the NanIC to the Gansan City New Road from the Ulsan Metropolitan City (hereinafter referred to as the "Ulsan Road") to the 15.746km of the road of this case and the road of this case from the 15.74km to the 14.34km of the road of this case (hereinafter referred to as the "the road of this case").

D. The new real estate purchased each land listed in the separate sheet (hereinafter referred to as "each land of this case") as stated in the decision of the court below as to the access road of this case and completed the registration of ownership transfer between December 1969 and July 1970.

E. After February 19, 1975, the Plaintiff was transferred the management of the access road to this case from Han new real estate and possessed each of the land of this case since that time.

F. On November 9, 1974, the Defendant filed a lawsuit against Han new real estate seeking the implementation of the procedure for the registration of ownership transfer based on the succession contract as of November 19, 197, and received a favorable judgment (Seoul District Court Decision 97Dahap23377) on June 10, 197, and completed the registration of ownership transfer on each of the instant lands on August 18, 197.

G. On April 2, 2018, the Plaintiff filed the instant lawsuit seeking the registration of ownership transfer on the ground that the Plaintiff’s acquisition by prescription of possession of each of the instant lands has been completed, on the grounds that each of the instant lands was first donated.

2. Judgment on the grounds of appeal as to the primary claim

The lower court determined to the effect that it is difficult to readily conclude that an agreement was concluded between the Defendant and the Korea Highway Corporation, etc. on the donation of each of the instant land, which is part of the site of the access road.

Examining the reasoning of the lower judgment in light of the record, the lower court did not err in its judgment by misapprehending the legal doctrine regarding the probative value of official documents, the formation of a contract for a third party, the formation of contribution acceptance, interpretation of declaration of intent, the principle of trust and good faith, or by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, contrary to what is alleged in

3. Judgment on the grounds of appeal as to the conjunctive claim

A. The judgment of the court below

Based on the circumstances indicated in its holding, the court below presumed that the Plaintiff’s possession of each of the instant lands constitutes possession based on the title that appears to have no intention to own in view of its objective nature, or the Plaintiff’s possession with an intention to exclusively control each of the instant lands by excluding the Defendant’s ownership, as its own property, constitutes an objective circumstance, and determined that the Plaintiff’s possession of each of the instant lands constitutes possession with the intention to own the instant lands, and determined that the Plaintiff’s possession of each of the instant lands constitutes possession with the intention to own the instant lands. Accordingly, the court below dismissed the Plaintiff’s preliminary claim seeking the registration of ownership transfer due to the completion of the statute of limitations for the acquisition of possession with respect

B. Judgment of the Supreme Court

However, it is difficult to accept the judgment of the court below for the following reasons.

1) Even if the State or a local government fails to submit a document regarding the procedure for acquisition of the land, where the State or a local government asserts the completion of the acquisition of the acquisition of the land, the presumption of possession of the land with an intention to exercise the ownership on the cadastral record, etc. after the State, etc. commenced possession, in light of various circumstances, such as the course and purpose of the possession, whether a person who was registered as an owner of the land in the cadastral record, etc. seeks to exercise the ownership, and the use or disposal of other divided land, etc., if it cannot be ruled out that the State or a local government has lawfully acquired the ownership through the procedure for acquiring the property for public use at the time of commencement of possession, it is difficult to deem that it was proven that it was occupied without permission by being aware of such circumstance without the legal requirements for acquisition of the ownership, and thus, the presumption of possession with an autonomous possession is not broken (see, e.g., Supreme Court Decisions 2010Da94731, Mar. 27, 2014; 2019Da23

2) Review of the reasoning of the lower judgment and the record reveals the following facts.

A) The Defendant invested high interest trust assets in projects such as social overhead capital facilities implemented by Korea-Japan. The new real estate constructed the instant public-private partnership roads, tunnels under subparagraph 1 in Namsan, and tunnels, etc., which are social overhead capital facilities, and performed projects to create housing sites, etc. at various national areas, and accordingly, the deficit of the new real estate was accumulated.

B) Accordingly, from August 1971, the Defendant, Han new real estate, the construction division, the Korea Expressway Corporation, etc. discussed measures to dispose of the instant public roads, etc., and on August 12, 1974, the Korea Expressway Corporation agreed to take over the instant public roads.

C) Since September 14, 1974 to October 14, 1974, the Defendant and the Korea Expressway Corporation consulted on a concrete plan for the handovering and taking over of the instant public-private partnership road four times. At the time, the Korea Expressway Corporation presented its opinion to the effect that the instant public-private partnership road is not an expressway, and thus, it cannot accept the instant public-private partnership road, and therefore, it cannot pay the construction cost of the access road as the acceptance fee. However, the Defendant suggested that the instant public-private partnership road was constructed as part of the instant public-private partnership road, and thus, the Korea Expressway Corporation must take over it.

D) During the consultation process, the Korea Expressway Corporation, etc. presented a plan to contribute access roads to the instant case to the Plaintiff since it is the road within the Plaintiff’s city.

On October 14, 1974, at the time of the meeting of the defendant, the defendant would resolve the access road of this case and the relationship with the plaintiff, etc., under the responsibility of the defendant. Thus, the Korea Highway Corporation requested that the amount equivalent to 1/2 of the construction cost of access road of this case be borne by the Korea Highway Corporation.

E) According to the above conference of October 14, 1974, the Korea Expressway Corporation concluded a contract to acquire the Ulsan Highway and all facilities attached thereto from the Korea Highway Corporation on October 15, 1974, with a view to acquiring it in KRW 2,855,722,688. The above acquisition price includes KRW 76,849,113, which is 1/2 of the access road construction cost of this case. At the time, the defendant guaranteed the obligation for the above transfer and acquisition contract of the new real estate.

F) On October 28, 1974, the Korea Highway Corporation transferred the management authority of the instant privately financed road to the Korea Highway Corporation, and obtained the permission for its transfer from the Construction Division on October 30, 1974. Meanwhile, on February 19, 1975, the Plaintiff transferred the management authority of the access road of this case from the new real estate after being transferred the management of the access road of this case from the new real estate on the part of the Minister of Construction and Transportation according to the urban planning (revision) decision of the Minister of Construction and Transportation, and thereafter, occupied

G) On November 9, 1974, the new real estate entered into a contract of succession with the Defendant on November 9, 1974 that “the Defendant succeeds to the remaining assets and liabilities of the new real estate including the instant land,” and subsequently completed the liquidation registration on October 8, 1975 through bankruptcy proceedings.

3) Examining the following circumstances revealed through such factual relations and records in light of the legal principles as seen earlier, even though the Plaintiff failed to submit evidentiary documents on the fact that each of the instant lands was donated from the Han real estate, as alleged by the Plaintiff, the presumption of the Plaintiff’s possession of each of the instant lands cannot be deemed reversed, barring any other special circumstance, since the specific content of each of the instant lands at the time the Plaintiff occupied the instant land is somewhat unclear, but it is sufficiently possible for Han Real Estate to transfer the ownership of each of the instant lands to the Plaintiff.

A) Due to the defect of new real estate invested by the Defendant, the Korea Highway Corporation has made a provisional agreement to acquire the instant public-private partnership roads. Since the access roads of this case are part of the instant public-private partnership roads, the Korea Highway Corporation originally intended to transfer the access roads of this case to the Korea Highway Corporation.

B) However, the Korea Highway Corporation presented its opinion that it is difficult to accept the access road of this case since the access road of this case is not an expressway but a road within the city of the plaintiff, and the defendant had the position to accept the access road of this case.

C) At the time of the Korea Highway presented a scheme of donation of the access road of this case to the Plaintiff. At the conference on October 14, 1974, the Defendant offered that if the Korea Expressway bears 1/2 of the construction cost of the access road of this case, the issue of the access road of this case and the issue of the Plaintiff will be responsible for and resolved. The Defendant accepted the Korea Expressway Corporation. The Defendant’s proposal purport that the Plaintiff would transfer the access road of this case to the Plaintiff regardless of what content the Defendant would transfer, and it is difficult to view that the Defendant or the Korea Expressway Real Estate will continue to hold the access road of this case even with the payment of 1/2 of the construction cost of the access road

D) A public official in charge of construction division attending the meetings of the Korea Highway Corporation and the Defendant, etc. on October 14, 1974, and prepared a report on the result of the meetings, which stated as follows: “The access road of this case among the public-private partnership roads of this case shall be transferred to the Plaintiff by the Defendant in the form of donation.” According to this, it seems that the public official in charge of construction division attending the meetings of the Korea Highway Corporation and the Defendant, etc. was understood that the Defendant transferred the access road of this case to the Plaintiff.

E) According to the above conference of October 14, 1974, the new real estate company appears to have actually received an amount equivalent to 1/2 of the construction cost of the access road of this case from the Korea Highway Corporation, and on February 19, 1975, transferred the management work of the access road of this case to the Plaintiff on February 19, 1975. The amount the new real estate company received from the Korea Highway Corporation is the price for transferring the access road of this case to the Plaintiff, and the transfer of the management work of the access road of this case to the Plaintiff is highly likely to

F) At the same time, Han New Real Estate originally held the authority to collect tolls of the instant public-private partnership road pursuant to Article 12(1) of the former Toll Road Act, and at the same time bears the duty and expenses necessary for the maintenance, repair, and other management of the instant public-private partnership road pursuant to Articles 12(2) and 11(3) of the same Act. It seems that the Plaintiff transferred the management of the instant public-private partnership road to the Plaintiff, and thereafter, deviates from the duty and responsibility for the maintenance, repair, etc. of the instant public-private partnership road.

G) After transferring the management work of the access road of this case to the Plaintiff, the Plaintiff was liquidated after about 10 months elapsed since the bankruptcy procedure, and the Plaintiff did not claim ownership of each land of this case to the Plaintiff. The Defendant also concluded a contract to succeed to the remaining property from the new real estate on November 9, 1974, and concluded a contract to succeed to the remaining property on June 10, 1997 with the judgment of winning a confession for the Plaintiff on August 18, 1997, there is no evidence to deem that the Plaintiff asserted the ownership of each land of this case until the time when the registration of ownership transfer is completed with respect to each land of this case.

4) Nevertheless, the lower court determined that the presumption of the Plaintiff’s independent possession of each of the instant lands was broken, and rejected the Plaintiff’s assertion on the completion of the statute of limitations for acquisition by possession.

The lower court erred by misapprehending the legal doctrine on the presumption of possession with independence and the reversal thereof, thereby adversely affecting the conclusion of the judgment.

4. Conclusion

Therefore, the part of the lower judgment regarding the conjunctive claim is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. The appeal regarding the Plaintiff’s primary claim is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Il-san

Justices Kim In-bok, Counsel for the defendant

Justices Heung-gu