Where a local government implements road construction works, the time to commence possession of the road site;

If a person who intends to occupy land starts an exclusive control over the land by a third party, etc. interested in the control of the owner or the land through a recognizable method, it would thereby be deemed to have commenced possession of the land. Therefore, if a local government performs a civil engineering work on a large scale or for a long time for the construction of a road, it shall be deemed that the de facto control over the site of a road is commenced by a small scale packing or drainage project on the private land actually being used as a road, barring any special circumstance, unlike the execution of small scale packing or drainage project on the private land actually being used as a road.

Articles 192(1) and 245(1) of the Civil Act

Supreme Court Decision 78Da1421 Decided September 26, 1978

[Judgment of the court below]

Attorney Ha Man-young, Counsel for the defendant-appellant in Ulsan-si

Busan High Court Decision 93Na11418 delivered on October 28, 1994

The judgment below is reversed, and the case is remanded to Busan High Court.

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

On the first ground for appeal

According to the reasoning of the judgment below, the court below acknowledged, based on macroficial evidence, that the defendant, as to the defendant's defense that the acquisition by possession was completed prior to the institution of the plaintiff's lawsuit, planned on November 1, 1972 as the completion date and started construction work on December 30 of the same year, and provided the land of this case to the public for passage as part of the 6th line vehicular road and India after incorporating the land of this case, which is owned by the plaintiff, into the site of the road, and completing construction work on the road for about 3 months, and completed the construction work on the road site. Since the defendant occupied the land of this case from November 1, 1972 to December 30 of the same year, 1972, the court below rejected the construction from the date of completion or the date of completion of construction work on the road of this case to the general public without any evidence to acknowledge that the defendant occupied the land of this case from the date of completion or the date of completion of construction work on the road of this case to the general public.

However, if a person who intends to occupy land starts an exclusive control over the land by a third party who is interested in the control of the owner or the land, it shall be deemed to have commenced possession of the land in accordance with the transaction concept. Thus, as in this case, if a local government executes civil engineering works on a large scale or for a long time for the construction of a road, it shall be deemed that the actual control over the road site is commenced in accordance with the externally recognizable method at the time of commencement of road construction works, barring any special circumstance, unlike the execution of small-scale packing or drainage works on the private land actually used as a road. Thus, the lower court’s conclusion that the possession of the road site is commenced in a lump sum when a local government opens a road, is erroneous in the misapprehension of legal principles as to the starting point of possession of the road site, and such illegality affected the conclusion of the judgment.

There is reason to discuss.

Therefore, without examining the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Jong-soo (Presiding Justice)