2018Da274694, Registration of ownership transfer

2018Da274700 (Counterclaim) Delivery of land

A

Attorney Lee Sang-gil, Counsel for the defendant-appellant

person

Class B:

C.

Defendant Counterclaim (Plaintiff) and Defendant Appellant, Counsel for the defendant-appellant

Daegu District Court Decision 2018Na30065 (Main Office), 2018Nana decided September 13, 2018

30072 Judgment (Counterclaim)

February 28, 2019

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

The grounds of appeal are examined.

1. The Plaintiff (Counterclaim Defendant; hereinafter referred to as the “Plaintiff”) filed a claim against the Defendants, the owner of the instant forest, for the registration of ownership transfer on the ground of the completion of the acquisition by prescription, by asserting that the acquisition by prescription of possession on the part (i), (c), and (iv) of the instant forest land, among the instant forest land, has been completed by possessing the forest land in this case after purchasing it from the Defendant (Counterclaim Plaintiff; hereinafter referred to as the “Defendant”) and from the Defendant (Counterclaim Plaintiff; hereinafter referred to as the “Defendant”) B (hereinafter referred to as the “Defendant clan”).

The Defendants asserted that the presumption of autonomous possession was reversed because they did not go through the resolution of the general meeting of the clan in order to dispose of the forest land of this case, which is the property of the clan, and that the Plaintiff knew of such fact at the time of purchase. Furthermore, the Defendant clan claimed against the Plaintiff on the basis of ownership of the forest land of this case as a counterclaim.

2. The court below accepted the plaintiff's claim against the principal lawsuit and dismissed the defendant clan's counterclaim on the premise that "If the purchaser of real estate purchased the real estate and commenced the possession, even if he knew that the ownership was not lawfully acquired due to the cause of invalidation in the sales contract, the intention to own shall not be deemed to exist in the possession itself," and on the grounds stated in its reasoning, the presumption of the plaintiff's autonomous possession was not reversed.

3. However, it is difficult to accept the above determination by the lower court for the following reasons.

(1) The intent of possession, which is the requirement for possession with intention to hold possession with intention to hold possession with intention to hold possession objectively

A decision on the existence of a real estate shall be presumed to have been held as an intention under Article 197(1) of the Civil Act if the nature of an possessory right is not clear. However, in a case where a real estate has been acquired by a juristic act with the knowledge that a juristic act was null and void even though it had not been authorized to dispose of it, it shall not be deemed to have an intention to own it at the time of commencement of possession, with the knowledge that it would not have exclusively control over the real estate as if it had already been the real owner's ownership and as if it were its own property. (See Supreme Court Decisions 78Da991, Nov. 14, 1978; 79Da1806, Dec. 26, 197; 91Da3751, May 8, 1992; 94Da5341, Nov. 24, 1995; 196Da1985, Apr. 196, 1995.

Meanwhile, since the property owned by a clan belongs to the collective ownership of the members of the clan, it shall comply with the provisions of the clan regulations concerning the management and disposition thereof, and it shall be decided by the resolution of the general meeting of the clan unless otherwise provided by the clan regulations. Thus, even if it is a disposition of the clan's property by the representative of the clan, it is null and void (see Supreme Court Decision 2000Da22881, Oct. 27, 199).

(2) If the defendant clan did not pass a general meeting resolution regarding selling the forest of this case to the plaintiff as alleged by the defendants, the sale and purchase of the forest of this case is null and void. If the plaintiff was aware of such fact at the time of purchase, there is room to deem that the plaintiff did not have the intention to possess the forest of this case at the time of commencement

Therefore, the lower court should have determined whether the presumption of autonomous possession by the Plaintiff was reversed after further examining whether the Defendant clan had gone through the general assembly resolution, etc. regarding the sale and purchase of forest land of this case, and if not, whether the Plaintiff was aware of such fact. In so doing, the lower court erred by misapprehending the legal doctrine on the reversal of presumption of autonomous possession, which determined that the presumption of autonomous possession by the Plaintiff was not reversed solely on the erroneous premise as indicated in its reasoning, and failing to exhaust all necessary deliberations.

4. Therefore, without further proceeding to decide on the remaining grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Min Il-young

Chief Justice Cho Jae-hee

Justices Kim Jae-in

Justices Lee Jae-hwan