[2] In a case where a local government or a state without title incorporates private land into a road site, whether the presumption of autonomous possession is broken (affirmative)

[2] In a case where a local government or a state has incorporated private land into a road site without a certain title to possess the land, such as taking the procedure for acquiring public property, such as one’s own expenses or donation, or obtaining the owner’s approval for use, the presumption of autonomous possession shall be deemed to be a de facto possession.

A. Examining the reasoning of the judgment below in light of the records, it is proper for the court below to acknowledge and decide that the plaintiffs jointly inherited the land Nos. 1 and 2 of this case, since they purchased the land of Nos. 1 and 2 of this case from the deceased non-party 2 of this case and completed the registration of ownership transfer around Oct. 22, 1929, the land of Nos. 1 and 2 of this case and No. 72 of this case, the land of No. 329 square meters, which was the land before the land category and administrative district are divided or the land category are changed. The ground of appeal pointing this out is without merit.

B. As to the claim that the Defendant used the instant land as an auxiliary facility of a road under Article 2 of the Road Act since its route was authorized as a local highway No. 393 on December 22, 1967, since the land category was changed to a road on March 20, 1953, the lower court determined that it cannot be deemed that the Defendant occupied the instant land as a road site prior to the 1990, on the ground that there was no evidence to acknowledge that there was a need for the installation of delivery necessary for the passage of the adjoining land to be recognized as a part of a road, since the land was incorporated into a road site after the land category was changed to a road on March 20, 195 into a 393 local road.

However, Article 2 (2) of the Road Act on the definition of a road includes roads, which include tunnels, bridges, ferry terminals, elevators for use as roads, and structures integrated into roads, which ensure the full utility of roads, and Article 1-2 of the Enforcement Decree of the Road Act includes drainage ways among "facilities or structures integrated into roads, which ensure the full utility of roads" under Article 2 (2) of the Road Act. Thus, if land 2 is used as drainage way for a local road as alleged by the defendant, it shall be deemed that it was used as a road site in accordance with the relevant provisions of the Road Act if it is used as drainage way for a local road as provided by the defendant.

Therefore, the court below should determine the time when the land No. 2 of this case was occupied by the defendant by examining whether the land was used as a appurtenances to the road as alleged by the defendant, and determine the time when the defendant was occupied by the defendant, as seen below in the determination as to the grounds of appeal by the plaintiffs, and determine whether to acquire the prescription period by taking into account the defendant's occupation. However, the court below determined that the prescription period has not been completed by the reasons as stated in its holding. The court below erred by misapprehending the legal principles on road and road possession under the Road Act, and the ground of

2. We examine the plaintiffs' grounds of appeal.

In a case where it is proved that the possessor occupied the real estate owned by another person without permission knowing the existence of the legal act or any other legal requirements that may cause the acquisition of ownership at the time of the commencement of possession without permission, barring any special circumstance, the possessor shall not be deemed to have an intention to reject the ownership of another person and to occupy it. Thus, the presumption of possession with the intention to own is broken (see Supreme Court en banc Decision 95Da28625, Aug. 21, 1997). Furthermore, the presumption of possession with the intention to own is broken. In addition, even in a case where a local government or a State takes the procedure for acquiring public property prescribed in the Local Finance Act or the State Property Act, such as the payment of its own shares or contributions, or incorporates the private land into the road site without a specific title, such as obtaining the approval of the owner’s use, the presumption of autonomous possession should be deemed to be broken

Therefore, the lower court should have deliberated on whether the Defendant, while incorporating the instant land No. 1 into a road site, was taking the procedure to acquire the public property under the Local Finance Act, and whether the owner (the Defendant alleged that the land was the owner of the land, and thus, he/she or his/her heir) obtained consent to use the land as a road.

Nevertheless, the court below determined that the acquisition by prescription was completed by estimating the defendant's possession as an independent possession only based on its stated reasoning. The court below erred in the misapprehension of legal principles as to the presumption of intention as an independent possession requirement in the acquisition by prescription of real estate, which affected the conclusion of the judgment. The ground of appeal assigning this error is with merit.

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 Cho Chang-hun (Presiding Justice)