The burden of proof for possession with respect to prescriptive acquisition

In the case of the acquisition by prescription, the intention of possession, which is the requirement for the possession with intention of possession, must be determined by the nature of the possessor, or in a case where the nature of the possessor is unclear, the possessor is presumed to have possession with the intention of possession pursuant to Article 197(1) of the Civil Act. Therefore, the possessor does not have the responsibility to prove that the possessor himself is the possession with intention of possession, and the possessor bears the burden of proving the other party who asserts that the possessor is the possession with the intention of possession with the intention of possession with the intention of possession. Therefore, even if the possessor's assertion of the right of possession with intention

Articles 245(1) and 197(1) of the Civil Act

Supreme Court Decision 82Da708, 709, 82Meu1792, 1793 Decided July 12, 1983

Plaintiff (Appointed Party)

Defendant 1 and 2 Defendants, et al., Counsel for the defendant-appellant-appellee

Cheongju District Court Decision 82Na97 delivered on December 17, 1982

The judgment of the court below is reversed, and the case is remanded to Cheongju District Court Panel Division.

The defendants' attorney's grounds of appeal are examined.

According to the reasoning of the judgment below, the court below rejected the testimony of the non-party 1 and the non-party 2, which corresponds to the argument that the defendant 1 acquired and possessed the real estate of this case from the non-party 1 and the non-party 2 in determining the defendants' defense of prescriptive acquisition from the non-party 1 in the middle of December 1953, the court below rejected the testimony of the non-party 1 and the non-party 2, and it cannot be presumed that the defendant 1 possessed the real estate of this case in good faith due to the nature of the title in the commencement of possession, and there is no other evidence to deem that the above defendant

However, if the nature of the possessor's right is not clear, it shall be determined by the nature of the possessor's right which is an objective ground for the acquisition of possession: Provided, That the possessor is presumed to have possession with the intention of possession pursuant to Article 197 (1) of the Civil Act. Thus, the possessor is not responsible for proving that he/she is the possessor's right of possession with the nature of the possessor's right of possession, and the possessor bears the burden of proving other owner's possession with the intention of possession without the intention of possession. Therefore, even if the possessor asserts the right of possession with the intention of possession, such as sale or donation, but this is not recognized, the presumption of possession with the reason that the possessor's right of possession is not recognized cannot be deemed to have been reversed, or it cannot be deemed to have been an owner with the nature of the possessor's right of possession with the intention of possession without any negligence (see Supreme Court Decision 82Da708, 709, 82Meu172, 1793, Jul. 12, 1983).

Therefore, the judgment on the remaining grounds of appeal is omitted, and the case is remanded to the Panel Division of the Cheongju District Court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating judges.

Justices Lee Jong-soo (Presiding Justice)