[2] Whether the presumption of possession with intention to hold possession is reversed in a case where the possessor who claims the prescriptive acquisition knowingly purchased the property devolving upon his/her knowledge (affirmative)

[3] In a case where Byung, who occupied the land, the ownership transfer registration of which was completed under the joint name of Gap and Japan, completed the registration of co-ownership transfer due to the purchase and sale of Gap's shares, and thereafter, Byung inherited his shares and thereafter asserted the completion of the prescription for possession of Eul's shares, which became State-owned property from January 1, 1965, as the vested property against the State, the case holding that Byung's possession without permission was reversed on the ground that Byung occupied or purchased the property, knowing that the possession of Eul's shares belongs to the State-owned property at the time of commencement of the commencement of possession

[2] 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 which may constitute the cause of the acquisition of ownership at the time of the commencement of possession without permission, barring any special circumstances, the presumption of the possession with intention to hold it shall be reversed, barring special circumstances. The presumption of the possession with intention to hold it shall be reversed in light of the above legal principles even in a case where the possessor who claims the acquisition by prescription knowingly acquired it with the knowledge that it

[3] In a case where Byung, a joint name of Eul and Japan, completed the registration of co-ownership transfer due to the purchase and sale of Gap's share, and Byung's share was transferred to Byung's share on January 14, 1928, and Byung's share was transferred to the State, and Byung's share was transferred to Byung's share, and Eul's share was owned to the State since January 1, 1965, and Eul's share was owned to be owned as state property from January 1, 1965, the court held that Byung's share was reversed in light of various circumstances, such as the following: Byung's share had been registered as Eul's share in the village where Byung had resided, and it seems that the village was known that the share was attributed to Eul's own share and its legal effect at the time of the commencement of the possession of Eul's share; however, since Byung's share was occupied without permission or purchased without permission, the presumption that Byung's possession was the autonomous possession.

1. Based on the evidence adopted, the lower court rejected the Plaintiff’s transfer registration of ownership as to Nonparty 1’s share in the instant land, which was owned by Nonparty 1 and Japan, on January 14, 1928 by 381 square meters (hereinafter “instant land”). The lower court, based on the presumption that the Plaintiff acquired shares in the instant land under the name of Nonparty 2, which was owned by Nonparty 1 and Japan, for the reason that it was insufficient to recognize that the ownership transfer registration was completed on May 26, 1981 under the name of Nonparty 1 and Nonparty 2, which was owned by the Defendant on March 10, 195, based on the presumption that the Plaintiff occupied the instant land under the name of Nonparty 1 and Nonparty 2, which was owned by the Defendant on May 26, 1981, on the ground that the ownership transfer registration was completed on March 10, 1957 for the reason that the Plaintiff occupied the instant land under the name of Nonparty 2, which was owned by the Defendant on March 2, 197, 197.

2. However, it is difficult to accept such a determination by the lower court for the following reasons.

According to Article 197(1) of the Civil Act, since the possessor of an object is presumed to have occupied the object as his/her own intention, there is no responsibility to prove his/her own intention in cases where the possessor asserts the acquisition by prescription. Rather, he/she bears the burden of proof for a person who denies the establishment of the acquisition by prescription by asserting that the possessor has no intention to own (see, e.g., Supreme Court en banc Decision 95Da28625, Aug. 21, 1997). The presumption of possession by intention cannot be reversed, or cannot be deemed as an possession by the nature of the possessor, solely on the ground that it is not recognized in cases where the possessor voluntarily claims the title of possession, such as sale and purchase (see, e.g., Supreme Court Decisions 94Da4953, Mar. 3, 1995; 9Da59757, May 26, 200).

Therefore, as determined by the court below, it cannot be readily concluded that the presumption of possession with independence under Article 197(1) of the Civil Act is reversed solely on the ground that Nonparty 2 was not recognized to have purchased the entire land of this case from Nonparty 1 on March 10, 1957, including the 1/2 share in the name of the enemy Tagabonds.

However, since Article 2 subparagraph 1 of the former Act on Special Measures for the Disposal of Property Belonging to Jurisdiction and Article 5 of the Addenda of the former Act stipulate that the property devolving upon Jurisdiction shall be State-owned free of charge by the end of December 1964, the property devolving upon Ownership shall not be State-owned by the end of January 1, 1965, and thereafter it is possible to possess the property devolving upon Ownership as State-owned property (see Supreme Court Decision 96Da51875 delivered on March 28, 1997). Accordingly, the possession of the property devolving upon Jurisdiction shall not be automatically converted from the possession of another State-owned property from the time of the possession to the possession of another State-owned property, and even in this case, the existence of the ownership shall be determined externally and objectively by the nature of the source of possession, or all circumstances related to the possession (see Supreme Court Decision 96Da5204 delivered on November 29, 196).

Meanwhile, in a case where it is proved that the possessor illegally occupied the real estate owned by another person with the knowledge of the absence of such legal requirements as to the legal act which may cause the acquisition of ownership at the time of the commencement of possession, barring any special circumstances, the presumption of possession with independence is reversed (see Supreme Court en banc Decision 95Da28625, Aug. 21, 1997). In a case where the possessor who asserts the prescriptive acquisition knowingly purchased it to the private person and starts possession with the knowledge that it is a property with no disposal authority, the presumption of possession with autonomy is reversed in light of the above legal principles (see, e.g., Supreme Court Decisions 98Da28442, Apr. 11, 200; 9Da36778, Jun. 9, 200).

However, according to the facts acknowledged by the court below, the above Japanese and the deceased non-party 2 were residing in the birth village (number 2 omitted) and the salary village (number 3 omitted) of the living village of the deceased non-party 2 near the land of this case, and there are many lots of land registered under the above Japanese and non-party 1's joint names as the land of this case. The land of this case, including the land of this case, and the land of this case and the above Japanese and non-party 1's joint names was divided into the "Yeeeeng (number 4 omitted)". The non-party 3 of the court below's judgment, around 191, was about to be located in the above Japanese name at the time of purchasing the land of this case (number 5 omitted) and the land of this case was returned to the Japanese government, and the land of this case, which was the land of this case, was again reverted to the government of this case, and the legal effect of this case including the land of this case.

Therefore, it is reasonable to deem that the deceased non-party 2 occupied the land in this case without permission, knowing that the ownership is attributed to the property at the time of commencing the possession of the 1/2 shares in the above Japanese name among the land in this case, barring any special circumstance. Therefore, such possession is the possession of the land in this case, and it cannot be deemed that it was occupied frequently.

Furthermore, even if the deceased non-party 2 purchased shares in the above Japanese name from the non-party 1 around March 10, 1957, considering the fact that it is common for the person who wants to purchase real estate to confirm the ownership relationship by the copy of the register or the cadastral record before the conclusion of the sales contract, and the above circumstances, etc., it shall be deemed that the deceased non-party 2 knowingly purchased shares in the land of this case with the knowledge that the ownership of 1/2 shares is attributed to property. In this regard, the presumption that the deceased non-party 2 occupied the land of this case shall be deemed to have been reversed.

Nevertheless, the court below rejected the defendant's assertion that the possession by the deceased non-party 2 and the plaintiff is the possession by the owner in the above Japanese name among the land in this case. The court below erred by misapprehending the legal principles on the presumption of possession by intention, which affected the conclusion of the judgment. The ground of appeal pointing this out has 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 Lee In-bok (Presiding Justice)