[1] In a case where it is proved that the possessor occupied the real estate owned by another person without permission despite the absence of such legal requirements, such as a juristic act which may cause the acquisition of the ownership at the time of the commencement of possession, whether the presumption of the possession with intention to own the real estate is broken (affirmative)

[2] The case holding that the plaintiff's possession of the land can be deemed as an unauthorized possession in a case where the defendant's name is registered in the case of a person who was under the circumstance of the land investigation division despite the plaintiff's assertion that the land occupied was under his/her own name and the plaintiff did not make any assertion or proof as to the intention at the time of possession

[1] Article 197(1) of the Civil Act is presumed to have been occupied as an owner in accordance with the intention of possession. However, as the possessor's possession is determined externally and objectively by the nature of the title that is the cause of the acquisition of possession or by all circumstances related to the possession, it shall be presumed that the possessor has no intention of possession, barring any special circumstances, in cases where it is proved that the possessor has occupied the real estate owned by another person without permission even though he/she is aware of the absence of such legal requirements without the legal act or any other legal requirements that may cause the acquisition of ownership at the time of the commencement of possession, barring any special circumstances. Thus, the presumption that the possessor has the intention of possession is broken.

[2] The case holding that, in a case where the Plaintiff asserted that the land occupied was assessed under one’s own name, but the name of the Defendant was registered at the time of possession, and the Plaintiff did not make any assertion or proof as to the intention at the time of possession, there is room to view that the Plaintiff’s possession of the said land was occupied without permission with the knowledge of the fact that the Plaintiff did not meet the legal requirements such as a juristic act which could cause the acquisition of ownership at the time of the commencement of possession, and that the presumption of the Plaintiff’s autonomous possession of the said land is broken if it is true.

[1] Articles 197(1) and 245(1) of the Civil Act / [2] Articles 197(1) and 245(1) of the Civil Act

[1] Supreme Court en banc Decision 95Da28625 delivered on August 21, 1997 (Gong1997Ha, 2501), Supreme Court Decision 98Da1232 delivered on May 8, 1998 (Gong1998Sang, 1591), Supreme Court Decision 98Da11758 delivered on June 23, 1998 (Gong1998Ha, 1954), Supreme Court Decision 97Nu2337 delivered on November 27, 1998 (Gong199Sang, 555)

Plaintiff (Attorney Choi Young-chul, Counsel for the plaintiff-appellant)

Korea

Seoul District Court Decision 96Na33395 delivered on May 29, 1998

The part of the judgment of the court below concerning the conjunctive claim shall be reversed, and the case shall be remanded to the Panel Division of Seoul District Court.

The grounds of appeal are examined.

Around July 10, 1967, the court below recognized that the plaintiff continued to possess before subdivision and the subsequent Gyeonggi-gun (hereinafter referred to as "Gwanju-gun of the original judgment") and the first real estate (name 1 omitted) of this case as dry field, and occupied it as a dry field. Since the fact that the plaintiff occupied the above land in a peaceful and openly and openly manner with his intention to own it, the court below accepted the plaintiff's preliminary claim for the implementation of the procedure for the registration of transfer of ownership as to each real estate of this case as stated in the judgment of the court below, on the ground that the acquisition by prescription for the land of this case and the first real estate of this case was completed on July 10, 1987 after the expiration of 20 years from the date of the above possession.

In accordance with Article 197(1) of the Civil Act, the possessor of an object is presumed to have occupied the object with the intention of possession. However, the issue of whether the possessor is the possession with the intention of possession or with the intention of possession without the intention of possession is determined externally and objectively by the nature of the title that is the cause of the acquisition of possession or by all circumstances related to the possession, and thus, in a case where it is proved that the possessor has occupied an object owned by another person without the intention of possession with the knowledge of the absence of such legal requirements without the legal act or any other legal requirements that may cause the acquisition of ownership at the time of the commencement of possession, barring any special circumstances, the possessor shall be deemed not to have rejected the ownership of another person and not to have the intention of possession. Therefore, the presumption of possession with the intention of possession is broken (see Supreme Court en banc Decision 95Da28625 delivered on August 21, 197)

In light of the records, although the plaintiff asserted that he was under the name of the business owner of the Gyeonggi-gun, the Gyeonggi-gun, the land prior to the division of each of the instant lands, the land was located in the name of the defendant, and the fact is not acknowledged, the defendant's name was registered in the column of the land survey division, and the plaintiff's assertion or proof is not raised as to the intention at the time of possession. Thus, it is reasonable to view that the plaintiff's possession of the said land was occupied without permission by being aware of the fact that there is no legal requirements such as legal act or other legal requirements that can cause the acquisition of ownership at the time of the commencement of possession, and if it is true after the deliberation, the presumption of the plaintiff's autonomous possession of the said land is broken.

Nevertheless, the court below's determination that the presumption of intention to own the above land is maintained only with the Plaintiff's possession without examining more detailed about the Plaintiff's intention to own the above land is erroneous in the misapprehension of legal principles as to the presumption of intention to own the land with respect to the acquisition by prescription. Thus, the ground of appeal pointing this out is justified.

Therefore, the part of the judgment of the court below regarding the conjunctive claim shall be reversed, and the case shall be remanded to the court below for a new trial and determination. It is so decided as per Disposition with the assent of all Justices who reviewed the appeal.

Justices Kim Jong-sik (Presiding Justice)