The presumption of intention to own as the requirement for possession with respect to the acquisition by prescription, and the degree of proof of possession with respect to the reversal thereof.

In the case of acquisition by prescription, the intention of possession, which is the requirement for possession with intention to hold possession objectively, shall be determined by the nature of the possessor's right. However, if the nature of the possessor's right is not clear, it shall be presumed that the possessor has possession with intention to hold possession under Article 197 (1) of the Civil Act. Therefore, the possessor is not responsible for proving that the possessor has possession with intention to hold possession with intention to hold possession with intention to hold exclusive control as his own property, and the possessor has the responsibility to prove that the possession is the owner with the intention to hold possession with intent to hold possession with intent to hold possession with intent to hold exclusive control by avoiding the ownership of another person. As such, the intention of ownership refers to the intention to exercise exclusive control as his own property, such as superficies, lease on a deposit basis, etc., as well as to the case where it is proved that the possession with the intention to hold exclusive control as his own property, even if it is not by the title of the other person's own property, the presumption

Articles 197(1) and 245 of the Civil Act, Article 187 of the Civil Procedure Act

Appellant Lee-do, Attorney Yoon Il-young, Counsel for the defendant-appellant

Appellee, Attorney Kim Dong-ju, Counsel for the defendant-appellant

Gwangju District Court Decision 89Na5184, 89Na5191 (Counterclaim) Decided June 1, 1990

The part of the lower judgment against the Plaintiff (Counterclaim Defendant) shall be reversed, and that part of the case shall be remanded to the Panel Division of the Gwangju District Court.

The grounds of appeal by the Plaintiff (Counterclaim Defendant, Plaintiff hereinafter referred to as the “Plaintiff”) attorney are examined.

1. According to the reasoning of the judgment below, with respect to the conjunctive counterclaim claim by the Defendant (Counterclaim Plaintiff; hereinafter the Defendant) for the period of prescriptive acquisition and the completion of prescriptive acquisition, the court below did not have any assertion or proof that the Defendant’s possession was presumed to be possession and that the period of possession was 20 years after the lapse of May 29, 1971 and the period of possession was 20 years since the Defendant was presumed to have been presumed to have been possession, and there was no assertion or proof that the Defendant’s presumption of the above autonomous possession was destroyed. Furthermore, if the Defendant collected the arguments of the parties in each part of the witness testimony of the court below, the witness stand in the court of first instance, the witness stand in the court of first instance, and the witness stand in the Gangseo-gu, the court below, after opening the above Rouri-ri road on May 30, 1951, the land of this case had been occupied by the Defendant and the owner of the above land and the owner of the land transferred to the Defendant on the ground of the expiration of the ownership of this case.

2. In the case of acquisition by prescription, the intention of possession, which is the requirement for possession with intention to hold possession objectively, depending on the nature of the source of possession right. However, if the nature of the source of possession right is not clear, it is presumed that the possessor has possession with intention to hold possession with intention to hold possession pursuant to Article 197(1) of the Civil Act. Therefore, the possessor does not have the responsibility to prove that he is the possession with intention to hold possession with intention to hold possession with the nature of the source of possession right, and to prove that the possession is the owner with the intention to hold possession with the intention to hold possession with the intention to exercise exclusive control as his own property by avoiding the ownership of another person. As such, the intention of possession refers to the intention to exercise exclusive control as his own property, such as superficies, right to lease on a deposit basis, right to lease on a deposit basis, etc., as well as to the case where it is proved that the possession with the intention to exercise exclusive control as his own property, even if it is not based on the title

According to the evidence Nos. 2 (Land Register), 3 (No. 5), and each statement of evidence Nos. 5 (Land Register) employed by the court below, and testimony of the second trial witness stand, the defendant first is acknowledged to have taken possession of the land of this case as a road site without following the procedure of acquiring title to the land after the public announcement of the land of this case as a road acquisition zone and the payment of compensation to the owner of this case. Second, the registration of ownership transfer remains in the name of the plaintiff who did not complete the registration of ownership transfer to the land of this case, and only the plaintiff was registered as the owner of the land of this case, as well as the old land cadastre that the defendant kept and managed, and as a third, it is difficult to view the plaintiff's exclusive possession of the land of this case as the owner of the land of this case as the owner of the land of this case and as the owner of this case's unjust enrichment from 1971 to 197.

The court below acknowledged that the plaintiff agreed to receive compensation instead of giving up the ownership of the land of this case incorporated into the road site between the defendant and the defendant based on the Eul evidence Nos. 1 (judgment) and the court of first instance, and some of the remarks of the court of second instance witnesses, but the above evidence No. 1 (No. 1) was first a judgment on the claim of compensation brought by the non-party 14 et al. against the defendant. According to the reasoning of the judgment, the plaintiff did not dispute the fact that the plaintiffs agreed to receive compensation instead of giving up the ownership of each land owned by the defendant, but the plaintiff did not include the plaintiffs in the above lawsuit, so it cannot be viewed as evidence that the plaintiff renounced the ownership of the land of this case. In addition, each testimony of the above witness Seodae-dae and Jungdae-dae-gu did not know that the plaintiff paid compensation of this case to the private land incorporated into the Lori square, but it did not retain evidence as to the payment of compensation, and even if so, the plaintiff did not waive the ownership of the land of this case.

In the end, the judgment of the court below which accepted the defendant's letter of prescription is justified in the misapprehension of the presumption of possession with independence, as it erred in the misapprehension of legal principles as to the reversal of the presumption of possession with the rules of evidence

3. Therefore, the part of the judgment below against the plaintiff is reversed and remanded. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Sang-won (Presiding Justice) Lee Jong-won (Presiding Justice)