건축물철거, 토지인도 및 손해배상
1. The plaintiff's appeal is dismissed.
2. The costs of appeal shall be borne by the Plaintiff.
Purport of claim and appeal
The first instance court.
1. In full view of the reasoning of the judgment as to the cause of the claim, Gap evidence 4-1 to Eul evidence 6-2, the records and images of Gap evidence 4-2, and the result of the on-site inspection by the court of first instance, the result of the survey and appraisal by the appraiser D of the first instance trial, the plaintiff is the owner of Eul Government-si C large 627 square meters (hereinafter referred to as "the plaintiff's land"). The defendant is the owner of E large 15 square meters (hereinafter referred to as "the defendant's land") adjacent to the plaintiff's land and of E large 155 square meters of land and three housing units (hereinafter referred to as "the defendant's house"), but the attached appraisal by the plaintiff's land was connected in order to each point of 4,5,6,7,13, and 4 square meters on the ground of (b) section 0.14 square meters on the ground of the plaintiff's land (hereinafter referred to as "the occupied part of this case").
Therefore, according to the above facts of recognition, barring any special circumstance, the defendant is obligated to remove the defendant gate and deliver the occupied part of this case to the plaintiff at the same time, and further, the defendant is obligated to return unjust enrichment acquired by occupying the occupied part of this case.
2. The defendant's defense is a defense that the defendant acquired by prescription the occupied part of the case. Thus, the defendant's defense is examined.
According to Article 197(1) of the Civil Act, the possessor of an article is presumed to have occupied the article in good faith, peace, and public performance with his/her own intent. As such, the possessor does not bear the burden of proving his/her own intent, and bears the burden of proving that he/she has no intention to own it. The possessor bears the burden of proving that the possessor
(see, e.g., Supreme Court Decision 2011Da15094, Jul. 28, 2011). In addition, when purchasing or acquiring a site along with a ground building and starting possession, the buyer does not accurately check and see the boundary line on the cadastral side with the neighboring land, and thereby, part of the adjoining land is erroneous.