[건물철거등·소유권이전등기][공1992.7.15.(924),2012]
In cases of purchasing or acquiring a site along with a building on the ground and commencement of possession, in cases where a part of the adjoining land is believed to belong to the purchased site by mistake, whether such possession may be regarded as an independent possession (affirmative)
Since the intention of possession, which is the requisite for the possession by prescription, is objectively determined by the nature of the source of possessory right, which is the cause of the acquisition by possession, it shall be deemed that the possession of the above adjoining land is based on the intention of ownership, as long as a part of the above adjoining land is actually handed over and possessed, even if the purchaser believed that it belongs to the site that he purchased or acquired part of the adjoining land because the purchaser does not accurately check the boundary line with the adjoining land when purchasing or acquiring the land along with the ground building and commencing possession.
Articles 197(1) and 245 of the Civil Act
[Plaintiff-Appellant-Appellee] Plaintiff 1 and 1 other (Law Firm Han-sung, Attorneys Park Young-chul et al., Counsel for plaintiff-appellant-appellee)
Plaintiff (Counter-Defendant) LLC, Attorney Yoon Jong-sung, Counsel for the plaintiff-appellee)
Defendant Lessee (Counterclaim Plaintiff) and one other Defendants (Attorneys Kim Yong-chul et al., Counsel for the defendant-appellant)
Busan District Court Decision 91Na4253, 4260, 4277 decided Dec. 6, 199
The judgment below is reversed, and the case is remanded to Busan District Court Panel Division.
The grounds of appeal are also examined.
According to the reasoning of the judgment below, the non-party 1 purchased the above part of the land owned by the non-party 2 from the non-party 1's non-party 2's non-party 1's non-party 2's non-party 1's non-party 2's non-party 2's non-party 1's non-party 2's non-party 2's non-party 2's non-party 1's non-party 2's non-party 1's non-party 2's non-party 1's non-party 2's non-party 2's non-party 1's non-party 2's non-party 2's non-party 1's non-party 2's non-party 1's non-party 2's non-party 1's non-party 2's non-party 1's non-party 3's non-party 1's non-party 1's non-party 1's land.
However, in the prescriptive acquisition, the intention of possession, which is the requirement for autonomous possession, is objectively determined by the nature of the source of possessory right, which is the cause of possession. Therefore, in the acquisition and commencement of possession with a building on the ground, even if the purchaser believed and occupied part of the adjoining land due to mistake as belonging to the site that he purchased and acquired, since the boundary line with the adjoining land is not accurately confirmed, it should be deemed that the possession of the adjoining land is based on the intention of possession, as long as part of the adjoining land is actually handed over.
Nevertheless, the court below erred by misapprehending the legal principles as to autonomous possession or prescriptive acquisition, which affected the conclusion of the judgment, and thus, it is reasonable to find out this error.
Therefore, without further proceeding to decide on the remaining grounds of appeal, we reverse and remand the judgment below. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Lee Chang-chul (Presiding Justice)