[토지경계확인][공1992.11.1.(931),2846]
Requirements for the prescriptive acquisition of traffic area;
Under Article 294 of the Civil Act, the provisions of Article 245 of the Civil Act shall apply mutatis mutandis only to cases where servitude is continued and expressed. Thus, the acquisition of prescription can be recognized only when the owner of the dominant land has continued to use the dominant estate on the dominant estate, and the objective situation where the owner of the dominant estate installs a road on the dominant estate and uses it on the dominant estate continues for the period prescribed in Article 245
Civil Act Article 294 (Article 245)
Supreme Court Decision 78Da2482 decided Apr. 10, 1979 (Gong1979, 11905) 90Da15167 decided Apr. 23, 1991 (Gong1991, 1458) 90Da16283 decided Oct. 22, 1991 (Gong1991, 2795)
Plaintiff
Defendant Attorney Seo-sung et al.
Seoul Civil District Court Decision 91Na25092 delivered on April 24, 1992
The appeal is dismissed.
The costs of appeal are assessed against the plaintiff.
1. We examine the Plaintiff’s ground of appeal No. 1.
Since the prescriptive acquisition of servitude under Articles 294 and 245 of the Civil Act takes effect by registering after the expiration of the acquisition period, it is justified that the court below rejected the Plaintiff’s claim for confirmation of servitude on the ground that the passage area claimed by the Plaintiff was not yet registered.
In addition, the judgment below did not purport to hold that the plaintiff has no interest in confirmation since the acquisition of real rights did not take effect unless the plaintiff has completed registration, and thus the claim for confirmation is groundless. Therefore, there is no error in the misapprehension of legal principles as to the theory of lawsuit, incomplete deliberation, incomplete reasoning, or violation of the rules of evidence. The argument is without merit.
2. We examine the second ground for appeal.
Article 294 of the Civil Act provides that the provision of Article 245 of the Civil Act shall apply mutatis mutandis only to cases where servitude is continued and expressed pursuant to the provision of Article 294 of the Civil Act. Thus, the acquisition of prescription can be recognized only when the owner of the dominant land establishes a road on the dominant estate and uses the dominant estate continuously for the period prescribed in Article 245 of the Civil Act. The case of the party members of the lawsuit (Law No. 78Da2482 delivered on April 10, 1979) is the same purport.
In this regard, the court below is just in rejecting the plaintiff's claim for the acquisition of prescription on the land of this case on the ground that there is no evidence to acknowledge that the plaintiff opened and used a passage on the land of this case, and there is no error of law that affected the conclusion of the judgment due to a violation of the rules of evidence or a violation
3. We examine the ground of appeal No. 3.
Examining the evidence, including each evidence pointed out by the court below, in light of the records, the court below's rejection of the plaintiff's letter of prescription acquisition of the above land portion on the ground that there is no evidence to acknowledge that the plaintiff occupied the land for the instant (B) district since November 10, 1969, and there is no error of law that affected the conclusion of the judgment due to incomplete deliberation or violation of the rules of evidence, such as the theory of lawsuit. This is without merit
4. Therefore, the appeal shall be dismissed, and all costs of appeal shall be assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.
Justices Song Man-man Lee Chang-chul et al.