[1] The meaning of and criteria for determining the possession of an article

[2] Whether it should be deemed that a building owner occupies the relevant site even if the building owner does not actually occupy the building or its site (affirmative), and whether the transferee who acquired the unregistered building and acquired the de facto right to dispose of the building by acquiring it also occupies the building site (affirmative)

[3] The case reversing the judgment of the court below which concluded that the person who occupied the site of unregistered house by acquiring the unregistered house and its roof together with the unregistered house connected with the registered house and its building site after acquiring it by transfer, lost the ownership of the registered house and its site, and that the person lost possession of the unregistered house merely because he did not occupy the unregistered house in reality

[1] Article 192 of the Civil Act / [2] Article 192 of the Civil Act / [3] Articles 192 and 245 (1) of the Civil Act

[1] Supreme Court Decision 98Da58924 Decided March 23, 1999 (Gong1999Sang, 737) Supreme Court Decision 2005Da24677 Decided September 30, 2005 (Gong2009Da39530 Decided September 24, 2009) / [2] Supreme Court Decision 2006Da39157 Decided July 10, 2008

[Defendant-Appellee] Plaintiff 1 and 2 others

Defendant

Ulsan District Court Decision 2008Na3565 decided July 9, 2009

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

We examine the grounds of appeal.

According to the reasoning of the judgment below, the court below rejected the plaintiff's assertion that the non-party's ownership was occupied by the non-party 10 co-Plaintiff 10 as well as the non-party 2's first instance court's first instance court's first instance court's first instance court's first instance court's first instance court's first instance court's second instance court's second instance court's second instance court's first instance court's second instance court's second instance court's second instance court's second instance court's second instance court's second instance court's second instance court's second instance court's second instance court's second instance court's first instance court's second instance court's second instance court's second instance court's second instance court's second instance court's second instance court's second instance court's second instance court's first instance court's second instance court's second instance court's second instance court's second instance court's first instance court's second instance court's second instance court's non-party's first instance court's first instance court's second court's appeal's second appeal's appeal's second appeal's appeal.

However, it is difficult to accept the lower court’s decision that the Plaintiff lost possession of the instant site.

The possession of a thing refers to the objective relationship that appears to be a factual control of a person under the social norms, and is in de facto control, it does not necessarily mean only physical and real control over a thing, but shall be determined in conformity with the ordinary social norms by taking into account the time, spatial and principal rights relationship with the thing, possibility of excluding others’ control (see, e.g., Supreme Court Decisions 98Da58924, Mar. 23, 1999; 2005Da24677, Sept. 30, 2005). Since a building cannot exist in common social norms, it shall be deemed that the owner of the building occupies the building's site. In such cases, even if the owner of the building does not actually occupy the building or its site, it shall be deemed that the building site is occupied for ownership of the building, and the transferee who acquired the right to dispose of the unregistered building by acquiring it by transfer shall also be deemed to possess the building (see, e.g., Supreme Court Decision 2007Da75716, Jul. 316, 2008.

According to the records, since the plaintiff received the ownership of real estate from the co-Plaintiff 11 in the first instance trial after acquiring the ownership of the real estate (number omitted), the plaintiff occupied the real estate (number omitted), the building site of this case, and the building site of this case, and caused the loss of ownership of the real estate (number omitted). In light of the above legal principles, in light of the above legal principles, the plaintiff is deemed to possess the building site of this case by holding the de facto right to dispose of the unregistered house on the building site of this case, and it cannot be concluded that the plaintiff lost the ownership of the real estate (number omitted) merely because the plaintiff lost the ownership of the real estate on the (number omitted).

Therefore, the court below should have deliberated specifically on whether the Plaintiff continuously occupied the instant site even after the Plaintiff lost the ownership of the real estate (hereinafter parcel number omitted), but it is concluded that the Plaintiff lost possession of the instant site solely on the ground that the Plaintiff lost the ownership of the real estate and that the Plaintiff did not occupy an unregistered house on the instant site in reality, and dismissed the Plaintiff’s claim for this case. Thus, it is obvious that the court below erred by misapprehending the legal principles on the possession of the building site, by failing to exhaust all necessary deliberations, which affected the conclusion of the judgment.

Therefore, the judgment below is reversed, and 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.

Justices Jeon Soo-ahn (Presiding Justice)