2015Da213353 Unlawful gains

1. A;

2. B

3. C.

person

Mayang-si

Seoul Central District Court Decision 2014Na6076 Decided April 8, 2015

September 10, 2015

The part of the judgment below against the defendant is reversed, and that part of the case is remanded to the Panel Division of the Seoul Central District Court.

The grounds of appeal are examined.

1. If the nature of the source of right to possess real estate is not clear, the possessor is presumed to have occupied in good faith, peace, and public performance with his/her own intent pursuant to Article 197(1) of the Civil Act. This presumption also applies to the possession by the State or a local government, which is the managing body of the land, such as the cadastral record, inasmuch as the possessor asserts the source of right to possess real estate by himself/herself, but this is not recognized, the presumption of possession cannot be reversed or deemed to have been deemed to have been occupied by the nature of the source of right (see, e.g., Supreme Court Decision 2006Da28065, Feb. 8, 2007). Therefore, even if the State or a local government failed to submit documents concerning the acquisition of land for which the completion of prescriptive acquisition was claimed, the circumstance and purpose of the possession, whether the State, etc. seeks to exercise ownership, together with other land that was divided into, and thus, the State’s acquisition of ownership cannot be determined lawfully by 20134.

2. The lower court determined that the Defendant’s presumption of free possession of each of the instant lands was broken on the ground that, while recognizing the fact that the land J land and G land in Gyeyang-gu in Gyeyang-gu was incorporated into the National Road 39 National Road Construction Works section in 1972 and used as part of the National Road 39 line, the Defendant did not lawfully incorporate the said J land into the road. The Defendant asserted that the land was legitimately purchased the said J land, and the purchase register of the road on the roads submitted by the Defendant stated that the compensation was set for the said G land was set, but the owner’s name and the compensation date remains public space, and the State or the Defendant did not indicate that the ownership of each of the instant lands was lawfully acquired, and that the presumption of free possession of each of the instant lands was not broken on the ground that the State or the Defendant did not state that the ownership of each of the instant land was maintained,

3. However, we cannot agree with the judgment of the court below for the following reasons.

A. Review of the reasoning of the lower judgment and the record reveals the following facts.

1) On January 7, 1936, the land category of the instant land was changed to a road on January 8, 1936, after the land category was divided from Goyang-gu Goyang-gu J land among the instant land (hereinafter “the instant land”). The name of the administrative district was changed on February 1, 1992 and the K land was divided into the instant land and the instant land was divided into the said E land and the land category was changed to the road on February 18, 193, and the said land was divided into the said land and the said land was divided into the said land and the said land and the said land category was changed to the road on February 18, 192.

2) Around September 26, 1936, H completed the registration of ownership transfer with respect to the instant land No. 1 and the instant G land. Each of the said lands is incorporated into a national highway 39 line construction section executed by the Seoul Regional Land Management Agency around 1972 and used as part of national highways 39 lines.

3) However, as H’s ownership, land N, P, and Q, adjacent to each of the instant lands was also incorporated into national highways 39 lines. As to the said land, the ownership transfer registration was made on December 27, 1971 on the ground of sale in the future of the State.

In addition, since H made a registration of each of the instant lands around September 26, 1936, no disposition has been made with respect to each of the instant lands. In particular, with respect to the instant G land before partition of the instant land, the inheritance registration was made on January 19, 1977 due to H’s death on April 2, 1976, but the inheritance registration was not made with respect to the instant land No. 1.

4) The H or its inheritors seem to have been well aware of the fact that each of the instant lands was being used as a road, and as seen earlier, the State acquired ownership through sale and purchase, but did not raise any special objection or demand compensation for the use of each of the instant lands as a road prior to the filing of the instant lawsuit.

B. Examining these factual relations in light of the legal principles as seen earlier, even though the Defendant failed to submit the documents on the acquisition of each of the instant lands, the possibility that each of the instant lands had gone through a lawful procedure for acquiring ownership of each of the instant lands, cannot be ruled out in light of the circumstances leading up to the Defendant’s possession, the purpose of possession, the relation to the disposal, use, and exercise of rights of each of the instant lands, and the relationship of disposal, possession, and

Therefore, the lower court should have deliberated on the following: (a) the details of the division and change of land category of the instant land and the instant G land; (b) the details of the division of the instant land and the land category; and (c) the details of the remaining land after the division of each of the instant land into the instant land; and (d) the details of the registration of inheritance as to the instant G land before the division into the instant land and the instant land; and (b) the details of the registration of inheritance as to the instant G land

Nevertheless, the lower court, solely on the grounds stated in its reasoning, determined that the Defendant’s presumption of possession was broken, and thus, the lower court erred by misapprehending the legal doctrine on the presumption of possession with autonomy, thereby failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment. The allegation in the grounds of appeal pointing

4. Therefore, without examining the remainder of the grounds of appeal, the part against the defendant among the judgment below is reversed, and that part of the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Supreme Court Decision 200

Justices Lee In-bok, Counsel for the appeal

Justices Kim Yong-deok

Justices Kim Gin-young