The case affirming the court below's decision that it is difficult to view that the landowner renounced the gains of acquisition by prescription only on the basis of reply to the purport that he will review the measures for compensation when opening a fire-fighting road later at the city and reply to the purport that the Si Council will purchase the land as secured by the future budget.

The case affirming the decision of the court below that it is difficult to view the landowner's demand for payment of compensation as waiver of the gains of prescriptive acquisition by reason of the reply to the purport that the Si Council would review the measures for compensation when opening a fire-fighting road later and reply to the purport that the Si Council will purchase the land as secured by the future budget.

Articles 184 and 245(1) of the Civil Act

[Defendant-Appellee] Plaintiff 1 et al.

[Judgment of the court below]

Daegu District Court Decision 93Na6278 delivered on October 20, 1993

The appeal is dismissed.

The costs of appeal are assessed against the plaintiff.

We examine the grounds of appeal.

1. On the first ground for appeal

The intention of possession, which is the requirement for possession with intention to hold possession with intention to hold it objectively, depending on the nature of the source of possessory right. However, if the nature of the source of possessory right is not clear, it is presumed to be possession with intention to hold it independently pursuant to Article 197(1) of the Civil Act. The presumption of possession with intention to hold it is also applicable to roads occupied by the State or local governments, and even if it is not acknowledged that the party lawfully acquired the source of possessory right in accordance with the procedures stipulated in the Road Act, the Urban Planning Act, etc. at the time of construction of the road, etc., the presumption of possession with intention to hold it cannot be deemed possession with intention to hold it as owner by nature of the source of possessory right (see

The court below recognized the fact that the defendant occupied and used the land of this case as a road site from December 20, 1958, and held that the acquisition by prescription has been completed upon the lapse of 20 years from December 20, 1958, since the defendant is presumed to have occupied the land of this case as an intention to own it. In light of the records, the judgment of the court below is just and acceptable as it appears based on the above opinion, and there is no error of law by misunderstanding the legal principles on possession with autonomy, such as theory of lawsuit, and the theory of lawsuit does not constitute an appropriate precedent in this case, unlike the case. The argument is without merit.

2. On the second ground for appeal

As to the plaintiff's assertion on the waiver of the prescription benefit, the court below acknowledged that the plaintiff submitted a peremptory notice demanding the defendant to pay compensation for the land of this case on or around April 23, 1990, and the defendant sent a reply to the purport that it will review compensation measures at the time of opening a fire-fighting road later because the land of this case is included in the fire-fighting road planning line under the urban planning on May 1 of the same year, and that on March 1992 at the racing City, it can be recognized that the plaintiff sent a reply to the purport that it will purchase the land as secured in the future budget. However, on the sole basis of the above facts, it is difficult to view that the defendant renounced the benefit of the prescriptive acquisition by possession.

If the contents of each reply above are as determined by the court below, this does not necessarily mean that the plaintiff's ownership of the land of this case is approved, but it can be seen to the purport that the plaintiff expressed a policy to compensate if the land of this case falls under the object of compensation, and the response of the racing conference is merely an answer by a person who has no authority to waive the right to give compensation. Meanwhile, in light of the records, the court below did not recognize that the plaintiff et al. responded to the demand for compensation whenever the plaintiff et al. visited the person in charge of the defendant's office from time to time and requested compensation as alleged in the lawsuit, and there is no evidence that the court below did not recognize that the defendant et al. expressed an active declaration, such as the waiver of the right to demand registration upon the expiration of the prescription period, etc. Thus, the court below's rejection of the plaintiff's assertion on the waiver of the right to demand compensation is just, and there is no error of law in violation of the rules of evidence or failing to exercise the right to request compensation.

3. Therefore, the appeal is dismissed and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yoon Young-young (Presiding Justice)