[1] Whether the occupation of possession is succeeded when the occupation is succeeded by inheritance (affirmative)

[2] Whether only the owner of another owner who has made a registration of preservation of ownership in his/her name can be converted into possession independently (negative)

[1] In a case where an inheritor acquires possessory right through inheritance, the inheritor cannot assert only his own possession regardless of the possession of the inheritee unless he commences his own possession by new title, and in a case where the possession of the substitute is the possession by inheritance, the possession of the inheritor by inheritance is not different from the inheritance prior to the inheritance, and barring any special circumstance, such possession cannot be the possession independently, and in order for the possessor to hold it autonomously, the possessor must express his intention to hold it against the owner, or commence possession with the new intention to hold it again by his new title (in a case where the inheritor of the land he occupied and managed and cultivated by the inheritee without purchase, the ownership transfer registration has been completed in the name of the inheritee, the situation leading up to the permission of the predecessor as to the possession of the inheritee, the situation leading up to the possession of the inheritee by the predecessor by cultivating the land, and the heir's succession to possession of the inheritee by preparing the number of the items at the time of possession by the predecessor, and there is no further room to reverse the judgment below as to this reason.

[2] The fact that another owner has made a registration of preservation of ownership in his name does not necessarily mean that the owner has been converted into possession independently by expressing his intention to own.

[1] Articles 193, 199, and 245 of the Civil Act; Article 187 of the Civil Procedure Act / [2] Articles 197(1) and 245 of the Civil Act

[1] [2] Supreme Court Decision 96Da25319 delivered on September 20, 1996 (Gong196Ha, 3149) / [1] Supreme Court Decision 74Da2136 delivered on May 13, 197 (Gong1975, 8461), Supreme Court Decision 86Da550 delivered on February 10, 1987 (Gong1987, 416), Supreme Court Decision 94Da19884 delivered on January 12, 1995 (Gong195Sang, 872) / [2] Supreme Court Decision 74Da2091, 2092 delivered on September 23, 197 (Gong1975, 8683, 1983Da388989, Mar. 18, 1989)

Jinju C&C Co., Ltd. (Attorney Gangnam-gu, Counsel for the defendant-appellant)

Gangnam Hong (Au General Law Firm, Attorneys Yellow-il et al., Counsel for the plaintiff-appellant)

Gwangju District Court Decision 95Na7488 delivered on December 6, 1996

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

The grounds of appeal are examined.

1. Summary of the judgment below

According to the reasoning of the judgment below, on February 20, 1918, the court below determined that the above 129 forest land No. 129 forest land no. 129 forest land land no. 129, which was determined in the name of the defendant's father of the above 1918, was the land no. 9 forest land no. 129 forest land no. 129 forest land no. 29 forest land no. 16 forest land no. 16 forest land no. 29 forest land no. 9 forest land no. 9 forest land no. 9 forest land no. 9 forest land no. 9 forest land no. 9 forest land no. 2 forest land no. 197 forest land no. 9 forest land no. 9 forest land no. 2 forest land no. 9 is owned by the defendant's heir no. 9 forest land no. 9 forest land no.

2. Judgment on the grounds of appeal

However, if possessory right is acquired by inheritance, the inheritor cannot assert his own possession regardless of the possession of the inheritee unless he commences his own possession with a new title. In addition, in the case where the possession of the substitute is the possession by inheritance, the possession of the inheritor by inheritance does not change before the inheritance and its nature or the shape. Thus, barring special circumstances, the possession cannot be the possession independently. For the possession to be carried out autonomously, the possessor must either indicate his intention to hold the owner or commence possession with a new intention to hold it again (see, e.g., Supreme Court Decisions 86Da550, Feb. 10, 1987; 94Da1984, Jan. 12, 1995; 96Da25319, Sept. 20, 196).

According to the facts and records acknowledged by the court below in this case, since the defendant can be found to have commenced possession of the land Nos. 1 and 2 of this case by inheritance as he died on March 7, 1959, the defendant cannot be deemed to have commenced possession with a new title or have expressed to the owner the intention to own the land. Thus, the defendant cannot be deemed to have converted possession with an intention to own the owner with an intention to own the land under his name (see Supreme Court Decisions 88Da95 delivered on April 11, 1989, 96Da25319 delivered on September 20, 196, etc.). The defendant's possession of the land Nos. 1 and 2 of this case by the defendant is determined by the nature of the river room's possession, which is the predecessor.

However, according to the evidence No. 1, No. 5-1, No. 2, and No. 7, which are not disputed in the establishment of Gap, Gap's evidence No. 1, No. 5-2, and Gap's evidence No. 7, as to the forest before the division of this case, which was under the name of the defendant's father's father on February 20, 1918, the registration of transfer of ownership has been completed on February 16, 1937 under the name of the plaintiff's clan on the old land cadastre. At the time of April 1951, the defendant applied for the permission of the above land No. 1, which was the representative of the plaintiff's clan's clan, for the permission of the above land from the head of the defendant's office on June 1 of the same year. According to each testimony of the plaintiff's non-party 2, which was not rejected by the court below, the plaintiff's plaintiff 1 and the plaintiff 1 and the plaintiff 1 and the plaintiff 1 and the plaintiff 1 and the above land of this case No.

In light of the above circumstances, since the possession of the land Nos. 1 and 2 of this case can be deemed as possession by another person, the court below erred in the misapprehension of legal principles as to the defendant's possession of the land Nos. 1 and 2 of this case, since the plaintiff's ownership transfer registration for the land Nos. 1 and 2 of this case has been completed, and the land Nos. 1 and 2 of this case has been permitted to occupy and manage the land No. 1 of this case with the above river Nos. 1 of this case as the river Nos. 2 of this case, and the situation where the above river Nos. 1 and 2 of this case's house No. 2 of this case's house No. 9 of this case's house No. 9 of this case's house No. 2 of this case's house No. 9 of this case's house No. 9 of this case's land No. 1 and 2 of this case's house No. 9 of this case's land No. 1 of this case's trust.

3. Therefore, the judgment of the court 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 with the assent of all Justices who reviewed the case.

Justices Park Jong-ho (Presiding Justice)