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(영문) 제주지방법원 2017.05.19 2016가단6070
토지점유에따른 시설물철거등
Text

1. As to each of 1/2 shares out of 342 square meters of D Forest in Seopo-si, Seopo-si, Seopo-si, the Defendants:

A. The separate sheet No. 2, 3, 4.

Reasons

Comprehensively taking account of the respective descriptions and arguments of Gap evidence Nos. 1 and 2 (including paper numbers), the plaintiff is the owner of Seopo-si D (hereinafter referred to as "the plaintiff's land"). The defendants are the owners who own the land E (hereinafter referred to as "the defendant's land") adjacent to the plaintiff's land at 1/2 ratio. The defendants own a stone fence installed on the ground of the straight line connecting each point of the attached Form Nos. 2 and 5 (hereinafter referred to as "the stone fence of this case"), and can be recognized that the plaintiff occupies the land of 158 square meters (hereinafter referred to as "the land of this case"). Thus, the defendants are obligated to remove the stone fence of this case, the owner of the land of this case, and deliver the land of this case, barring any special circumstances.

The Defendants’ assertion asserted that the Defendants succeeded to the possession of F and G, etc., the former owner of the Defendant’s land, and that H’s acquisition by prescription on the instant land was completed on October 4, 2014, when the period from October 4, 1994 to October 4, 2014, when the registration of ownership preservation was completed, and thus, the Plaintiff’s claim cannot be complied with.

Unless the nominal owner of a real estate is the same and there is no change in the period of prescription, in principle, the starting point of the possession that serves as the basis for the acquisition of prescription shall be the starting point and the parties shall not arbitrarily choose the starting point (see, e.g., Supreme Court Decision 93Da7358, 7365, Oct. 26, 1993). In a case where a third party purchaser completes the registration of ownership transfer after the completion of the period of prescription on the basis of the starting point of acquisition, the obligation to transfer ownership of the nominal owner at the time of the completion of the period of prescription is impossible (see, e.g., Supreme Court Decision 93Da22883, Sept. 28, 1993). With regard to the timing of the commencement of possession, the foregoing evidence, evidence set forth in subparagraphs 1 and 2, and arguments.

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