건축물철거, 토지인도 및 손해배상
1. All of the plaintiff's claims are dismissed.
2. The costs of lawsuit shall be borne by the Plaintiff.
1. In full view of the following facts: (a) Party A’s evidence Nos. 4-1 to Party A’s evidence Nos. 6-2; and (b) the result of the on-site inspection conducted by this court; (c) the Plaintiff is the owner of Party C, 627 square meters (hereinafter “Plaintiff’s land”); and (d) the Defendant is the owner of Party E, E, 155 square meters adjacent to the Plaintiff’s land (hereinafter “Defendant’s land”) and the housing of Party C, 155 square meters adjacent to the Plaintiff’s land (hereinafter “Defendant’s housing”); (b) the attached appraisal of the Plaintiff’s land is indicated in the attached Form Nos. 4, 5, 6, 7, 13, and 4; and (c) the fact that the Defendant’s house (hereinafter “Defendant’s house”) was installed on the ground of Section B, 14 square meters (hereinafter “instant occupied portion”).
Therefore, according to the above facts of recognition, barring any special circumstance, the defendant is obligated to remove the defendant gate to the plaintiff and deliver the occupied part of this case 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 object is presumed to have occupied the object as his/her own intent. As such, the possessor is not responsible for proving his/her own intention if he/she claims the acquisition by prescription, and the possessor bears the burden of proving that he/she has no intention to own it.
(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 purchaser does not accurately confirm and regard the boundary line on the cadastral register with the neighboring land, thereby purchasing or acquiring part of the adjoining land by mistake.