In a case where an occupant occupied real estate owned by another person without permission knowing the existence of such legal act or any other legal requirement that may cause the acquisition of ownership at the time of the commencement of possession without permission, whether the presumption of possession with autonomy is broken (affirmative in principle) (affirmative in principle), and whether the same applies to a case where the State or a local government arbitrarily incorporates private land into a road site without a title to occupy the land (affirmative)

Article 197(1) of the Civil Act

Supreme Court en banc Decision 95Da28625 Decided August 21, 1997 (Gong1997Ha, 2501) Supreme Court Decision 2009Da32553 Decided September 10, 2009

Plaintiff 1 and one other (Law Firm Cheong Law, Attorneys Kim Yong-sub, Counsel for the plaintiff-appellant)

Korea

Cheongju District Court Decision 2011Na5975 decided July 17, 2012

All appeals are dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal are examined.

If the nature of the source of possessory right of real estate is not clear, the possessor is presumed to have occupied the real estate in good faith, peace, and public performance by his own will pursuant to Article 197(1) of the Civil Act. However, in cases where it is proved that the possessor occupied the real estate owned by another person without permission despite the knowledge of the absence of any legal act or other legal requirements that could cause the acquisition of ownership at the time of the commencement of possession, the possessor shall not reject the ownership of another person and have no intention to occupy it, barring any special circumstances. Thus, the presumption of possession with intention to own is broken (see Supreme Court en banc Decision 95Da28625 delivered on August 21, 1997). The same applies to cases where the local government or the State arbitrarily incorporated the land into a road site without a title that can occupy the land without permission (see Supreme Court Decision 209Da32553 delivered on September 10, 209).

However, even if the State or a local government fails to submit documents regarding the fact that the acquisition procedure of the pertinent land was conducted, it cannot be readily concluded that the State or the local government occupied the relevant land with the knowledge that the cadastral record, etc. was destroyed by a disturbance of 6/25 or no other reason exists and thus, the State or the local government was registered as the owner in the cadastral record, etc. In light of the purpose and purpose of occupation, if it appears that the possibility that the State or the local government lawfully acquired the ownership as a result of the acquisition procedure of the public property at the time of the commencement of occupation can not be ruled out, it is difficult to view that the State or the local government had proved that it occupied the land without permission by being aware of such circumstance without the legal requirements for the acquisition of ownership, and thus, the presumption of the autonomous possession of the relevant land cannot be reversed solely on the ground that the State or the local government did not submit documents concerning the procedure for the acquisition of ownership (see Supreme Court Decisions 2005Da33541, Dec. 9, 2005; 2007Da41910.

According to the reasoning of the judgment below, the court below is just in holding that the presumption that the defendant's possession of each of the lands of this case was de facto possession, in light of the following: although the defendant occupied and managed each of the lands of this case as a road for not less than 20 years, the register and cadastral record of each of the lands of this case were not destroyed at the time when the defendant commenced possession and use of each of the lands of this case, and there is no evidence to support the fact that the state or the defendant acquired ownership, and there is no evidence to deem that the defendant had gone through lawful acquisition procedures for each of the lands of this case, and there is no error in the misapprehension of legal principles as to the prescription of possession, contrary to the

Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Min Il-young (Presiding Justice)