[2] The subject of good faith and negligence in the acquisition by prescription on the registry and the burden of proving negligence

[3] Whether a buyer was negligent in occupying the real estate without investigating whether the seller has the right to dispose of the real estate (affirmative)

[2] In the acquisition by prescription of the registry, the bona fide and without fault is not about the registration, but about the acquisition by possession, and the burden of proving the negligence is on the part of claiming the acquisition by prescription.

[3] A person who acquired real estate shall investigate whether the transferor has the right to dispose of the real estate, and if the transferor acquired the real estate without such investigation despite the fact that he could have known that the transferor had no right to dispose of the real estate, it shall not be deemed that there was a negligence in the possession of the real estate.

1. According to the reasoning of the judgment of the court below, each of the lands listed in the annexed list of the court below was divided into 3 5 m3 m3 m3 m4 m3, 1984 m3 m3,000 m3,000. The land before division was indicated as the Plaintiff’s assistance in the forest survey under the Shipbuilding Land Survey Order during a certain period as the owner. On the other hand, around October 1967, as to the land unregistered between Nonparty 3 and the deceased Nonparty 1, who claimed to be the grandchildren of the above defendant 1, the seller had completed the registration of the above defendant’s name prior to the completion of the sale price, and one grave within the above ground was occupied under the above 19m3m3 m3 m3 m4 m3 m3 m3 m3 m3 m4 m3 m3 m3 m3 m4 m3 m3 m3 m3 m4 m3 m3 m3 m3 m3 m3 m3 m3 m3 m4.

2. The possession of an article refers to the objective relationship in which a person is deemed to be in a factual control under the social concept, and in order to be in de facto control, it does not necessarily mean only physical and practical control over an article, but should be determined in conformity with the social concept by taking into account the time, spatial relationship with the article, principal right relationship, possibility of control by others, etc. In particular, the transfer of possession of forest land or the continuation of possession does not necessarily require physical and realistic control, but it shall be deemed that delivery was made when the management or use is transferred, and in case of transfer of ownership of forest land, it shall be deemed that the exercise of control over the forest land is a common transaction form (see Supreme Court Decision 91Da38266, Jun. 23, 1992).

In light of the above legal principles and records, the court below's decision that recognized Defendant 1's possession of the land before subdivision is just, and there is no error of misconception of facts as alleged in the grounds of appeal. The allegation in this regard is without merit.

3. Meanwhile, the acquisition by prescription does not relate to the registration, but to the acquisition by possession, and the burden of proof as to the acquisition by prescription is on the side of claiming the acquisition by prescription, and the person who acquired real estate shall investigate whether the transferor has the right to dispose of the real estate. If the transferor acquired the real estate without such investigation despite the fact that he could have known that the transferor had no right to dispose of the real estate if he had investigated it, it cannot be said that there was a negligence as to the possession of the real estate (see, e.g., Supreme Court Decisions 90Meu16792, Oct. 16, 1990; 94Da22651, Feb. 10, 1995; 96Da16889, Jul. 12, 196).

According to the records, when Defendant 1 entered into a sales contract for the land before division with Nonparty 3, it did not confirm whether he had the authority to dispose of this land to Nonparty 3, who is not the nominal owner in the public register, and on the other hand, Nonparty 1 died on May 2, 1930, and he became the deceased deceased on September 8, 1974. The deceased Nonparty 4 was deceased on September 8, 1974, and his children were only the deceased and Nonparty 5, Nonparty 6, Nonparty 7, and Nonparty 8, who was the deceased, and the children of Nonparty 3 on the family register were not entirely registered. Thus, if the above Defendant had confirmed only the deceased Nonparty 1’s removed copy, it can be known that Nonparty 3 did not have the authority to dispose of this land because he could not become the deceased Nonparty 4’s heir, and therefore, he could not become the deceased Nonparty 1’s heir.

In light of the above, although the above defendant did not have been negligent in starting possession of this land, the court below determined otherwise that the above defendant was not negligent at the beginning of the occupancy of this land solely based on its findings, which erred by misapprehending the legal principles as to the requirements for the acquisition of the prescription period for the registration of the registry or by misunderstanding facts contrary to the rules of evidence, which affected the conclusion of the judgment. The part of the grounds of appeal assigning this error is with merit.

4. Therefore, the lower judgment is reversed, and the case is remanded to the lower court. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Cho Chang-hun (Presiding Justice)