[소유권확인등][집14(3)민,157]
Cases where there is an error in the misapprehension of legal principles as to conversion into possession with independent possession.
It is insufficient to say that the owner's possession has completed the registration of ownership transfer in his name, and that the possessor has an intention to hold the possessor, or that the possessor has no intention to hold the possessor, or that the possessor has no intention to hold the possessor again with the intention to own it by the new owner.
Namyang Hong F&C v. (Attorney Hong-soo et al., Counsel for the defendant-appellant)
Defendant (Attorney Cho Jae-sik, Counsel for the defendant-appellant)
Seoul High Court Decision 65Na1077 delivered on June 1, 1966
Of the original judgment, the part against the Plaintiff is reversed;
The case is remanded to Seoul High Court.
The defendant's appeal is dismissed.
The costs of the appeal shall be borne by the defendant for the costs of the appeal.
In light of the records, the first ground for appeal of the defendant's legal representative was examined in light of the records, and each evidence cited by the original judgment was not sold to the defendant in the plaintiff's clan as shown in the original judgment. However, on January 1941, the deceased non-party 1, who was the father of the defendant's birth, can be recognized as having completed the registration of transfer of ownership in the name of the defendant by preparing the same sale certificate (No. 3) and power of attorney, etc., without any right to represent the plaintiff's clan and selling each of the real estate to the defendant by gathering the representative's qualification among the plaintiff's clan, without any right to represent the plaintiff's clan, and it cannot be found that there was any error in the logical rules or rule of experience in the content of the evidence preparation and the process of fact-finding in the original judgment. In the above registration of transfer of ownership, it cannot be said that there was no error in the misapprehension of whether the defendant's right witness Eul was attached or the guarantee was attached.
The second ground of appeal No. 2
On December 9, 1941, the defendant asserted that the acquisition period of each real estate of this case was completed on January 28, 1961 due to the expiration of the acquisition period of 20 years from December 9, 1941, and according to each evidence cited by the original judgment, the attached list No. 1 in the original judgment had a manager in the plaintiff clan for possession and management, and it cannot be said that the defendant did not have possession, and it cannot be said that the defendant did not have possession, and that the evidence No. 6-1, 2, and 3 cited in the arguments do not have any evidence to support the above recognition. Therefore, the argument is without merit.
Plaintiff 1’s ground of appeal No. 1
The judgment of the court below is that the defendant succeeded to the possession of the non-party 2 in possession with the delegation from the plaintiff clan by the defendant, and possession of the real estate listed in the annexed Table 2 in the original judgment by the non-party 2 in possession shall be deemed to be the nature of title. However, although the defendant's registration on the above real estate was made in the name of the defendant on January 29, 1941, it can be said that the defendant expressed his intention to own the above real estate from the time of the above registration, even if it is not a ground for registration.
However, in a case where the possessor does not have the intention to own it in the nature of the title, the possession does not change its nature unless the possessor expresses his intention to own it or does not commence the possession by the intention to own it again (see Article 185 of the Gu Resident Act). Barring special circumstances, as seen above, it cannot be said that the non-party 1 has the intention to own it in the name of the defendant with the qualification to represent the plaintiff clan, and the defendant expressed his intention to own it in the name of the defendant. However, the court below did not err by misapprehending the legal principles on conversion into possession with the intention to own it. This affected the conclusion of the judgment, which affected the conclusion of the judgment, and therefore the part against the plaintiff in the original judgment shall not be reversed without examining the remaining grounds for appeal of the plaintiff.
Therefore, the part against the plaintiff among the original judgment is reversed, and that part of the case is remanded to the Seoul High Court which is the original judgment, and the defendant's appeal is dismissed, and the defendant's appeal is assessed against the defendant. It is so decided as per Disposition by the assent of all participating judges.
Supreme Court Judge Madung (Presiding Judge) Kim Gung-bun and Madlebro