[1] Whether the possession of another person's land adjacent to his own land is converted into the possession of another person solely on the ground that the person who started possession of the land owned by another person becomes aware of the fact that the land was not the ownership of the land later, or that there was a mutual dispute as a result of the cadastral survey, and there was a mutual dispute (negative)

[2] The standard for determining whether there exists an expression of intent to waive the prescriptive benefit upon completion of the statute of limitations and the other party to waiver the statute of limitations

[1] Articles 197(1) and 245(1) of the Civil Act / [2] Articles 111(1), 184, and 245(1) of the Civil Act

[1] Supreme Court Decision 2001Da5913 Decided May 29, 2001 (Gong2001Ha, 1473) / [2] Supreme Court Decision 2011Da23200 Decided July 14, 201, Supreme Court Decision 2011Da21556 Decided February 28, 201 (Gong2013Sang, 547)

Gwangju High Court Decision 2001Na14488 decided May 1, 201

Defendant 1 and one other (Attorney Dog-sung et al., Counsel for the defendant-appellant)

Gwangju District Court Decision 2012Na13701, 13718 Decided May 15, 2013

The judgment below is reversed, and the case is remanded to the Gwangju District Court.

The grounds of appeal are examined.

1. According to the reasoning of the judgment below, since the non-party 1 occupied the part (C) and (d) of the site of this case from around July 1, 1966 to around October 14, 197, from around March 21, 2003, the above part was occupied by the defendant 1 from around March 21, 200, and the non-party 2 occupied the part (B) of the site of this case from around August 30, 1966 to the non-party 6 through the non-party 3, 4, and 5, and thereafter the non-party 2 succeeded to the possession as the non-party 6's heir, according to the non-party 6's testimony, etc., the court below determined that the non-party 1 participated in the boundary lot number of the building of this case and the non-party 6's non-party 9's non-party 1's non-party 1's non-party 9's non-party 1's non-party 6's testimony.

2. However, we cannot agree with the above determination by the court below for the following reasons.

A. A person who later occupies another’s land adjacent to his/her own land with the knowledge of the possession at the beginning of his/her possession as a part of his/her own land, does not necessarily convert his/her possession into the possession of another, even if he/she became aware of the fact that the land was not his/her own land or that the boundary was revealed as a result of the cadastral survey, and there was a mutual dispute thereby (see Supreme Court Decision 2001Da5913, May 29, 2001, etc.).

In light of the above legal principles, the court below determined that the possession of the part (C) and (d) was converted into the possession of the owner on October 14, 1974 on the ground that the boundary survey on the site of this case was conducted on or around October 14, 1974, and that the non-party 1, who is the possessor of the part (C) and (d) confirmed the fact that the part (D) was invaded by the boundary of the site of this case, which is owned by the plaintiff, was in violation of the legal principles as to the conversion into the possession of the possession of the owner on the part (C) and (d).

B. The waiver of the prescriptive benefit is an active and unilateral declaration of intent to not receive legal benefits arising from the completion of prescription, and its effect takes effect when a single act of the other party, such as the waiver of the prescriptive benefit, reaches the other party directly affected by the said declaration of intent (see, e.g., Supreme Court Decision 2011Da23200, Jul. 14, 201). Determination as to whether a waiver of the prescriptive benefit exists shall be made objectively and reasonably in accordance with logical and empirical rules, and the common sense of society, with a comprehensive consideration of the act indicated therein, the content, motive, and circumstance of the expression of intent, the purpose that the parties intend to achieve by the said declaration of intent, etc., and the genuine intent that the parties intend to achieve by the declaration of intent, etc. (see Supreme Court Decision 2011Da21556, Feb. 28, 2013).

그런데 제1심증인 소외 8의 증언에 의하더라도 1992. 6. 15.경 이 사건 (지번 1 생략) 대지에 관하여 소외 6으로 보이는 휠체어를 탄 사람이 경계측량에 입회하여 자신의 건물이 원고 소유의 이 사건 (지번 1 생략) 대지의 경계를 침범하여 점유하고 있다는 사실이 밝혀지자 장래에 건물을 재건축할 때 다시 정리를 해주겠다고 하였을 뿐, 경계를 침범하고 있는 부분을 그 당시에 바로 원고에게 반환하겠다거나 자신이 점유하고 있는 부분의 소유권을 포기하겠다는 의사를 명시적으로 밝히지는 않았을 뿐만 아니라, 장래의 약속에 대해서도 이를 문서화하지는 않겠다고 거부하였다는 것이고, 기록에 의하면 판시 (나)부분과 이 사건 (지번 1 생략) 대지 중 원고가 점유하는 부분 사이의 경계선인 원심 별지 도면 표시 ㅈ, ㅊ, ㄴ¹의 각 점을 차례로 연결한 부분(이하 ‘이 사건 경계선 부분’이라 한다)은 이 사건 (지번 2 생략) 대지 상의 철거되기 전 구 건물의 안방 벽으로 사용되고 있었을 뿐만 아니라 이 사건 (지번 1 생략) 대지와의 경계로 사용되고 있었던 관계로 2002. 10. 21.경 구 건물을 철거하고 피고 1 명의로 새로운 건물을 건축할 때 그대로 남겨 두어 현재는 선상 길이 10.7m, 폭 0.2m, 높이 2.3m의 시멘트블럭조 담장으로 남아 있는 사실, 2002. 10. 21.경 구 건물을 철거하고 피고 1 명의로 새로운 건물을 건축한 후 이 사건 경계선 부분에 담장을 설치할 무렵까지도 원고가 판시 (나)부분에 대하여 어떠한 요구를 하였다고 볼 아무런 자료가 없을 뿐 아니라, 이 사건 (지번 2 생략) 대지에 피고 1 명의로 새로운 건물이 건축된 이후 판시 (나)부분은 공터로서 주차장 부지로 사용되고 있었을 뿐이었음에도 소외 6이 사망할 때까지 원고가 소외 6을 상대로 종래의 약속 등을 근거로 판시 (나)부분의 인도를 요구한 적은 없는 사실 등을 알 수 있다.

Examining the above facts in light of the legal principles as seen earlier, even if Nonparty 6 took part in the boundary surveying and made a statement that he would again order the reorganization of the building in the future, such statement is merely an expression of intent to waive the prescription benefit of the portion (b) in the holding that the period of prescriptive acquisition has already lapsed due to one’s possession, and to consider whether to waive the prescription benefit when removing and reconstructing the building in the future. Therefore, it is difficult to deem that Nonparty 6 actively expressed his intention to waive the prescriptive acquisition benefit against the Plaintiff.

Nevertheless, the court below determined that the non-party 6 renounced the prescriptive acquisition benefit as to the part (b) holding. Thus, the court below erred by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or by misapprehending the legal principles on the waiver of the prescriptive acquisition benefit, thereby adversely affecting

3. Conclusion

Therefore, 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 Kim Shin (Presiding Justice)