The intention to own as the requirement for acquisition by prescription

The intention that is the requirement for the acquisition by prescription can be recognized when it is decided by the nature of possessory right or it is expressed by the possessor that he/she wishes to own.

Article 245 of the Civil Act

Supreme Court Decision 74Da945 delivered on August 30, 1974

Plaintiff

Defendant-Appellant Park Jong-sung, Counsel for the defendant-appellant

Seoul High Court Decision 79Na2148 delivered on March 14, 1980

The appeal is dismissed.

The costs of appeal shall be borne by the defendant.

The defendant's attorney's grounds of appeal are examined.

With respect to paragraphs 1 and 2:

On April 26, 1941, the court below rejected the judgment of the court below that the plaintiff's father, the deceased non-party 1 purchased the land as stated in the judgment of the court below from non-party 2, Japan where he owned it and passed the registration of ownership transfer, and he occupied and managed it on August 10, 1948, and died on August 10, 1948. The plaintiff, his inheritor, without completing the registration of inheritance, made a false document as if he purchased the land from the above non-party 1 on January 20, 1940, and completed the registration of ownership transfer under his name in accordance with the Act on Special Measures for the Registration of Forest Ownership Transfer. The court below rejected the judgment that the above non-party 4 offered the land as security, borrowed money from the non-party 4, and failed to repay this, and therefore the registration of ownership transfer was completed under the name of the defendant since the above non-party 3 applied for a voluntary auction, and thus, the registration of ownership transfer was null and void.

In addition, the court below's examination of the process of documentary evidence in recognizing the above facts is legitimate, and the judgment of the court below can be determined that there is a violation of the rules of evidence against the rules of evidence.

In addition, since the court below has accepted the plaintiff's proof and recognized the fact that the registration of transfer of ownership in the above non-party 3 on the land was null and void, there is no error of law by misapprehending the legal principles on the allocation of burden of proof, such as theory of lawsuit, in the original judgment.

All arguments are groundless.

With respect to the third point:

The intention of ownership, which is a requirement for prescriptive acquisition, may be recognized in cases where the possessor or the possessor decides on the part of the title of possession or expresses his intent to hold it as the owner (see Supreme Court Decision 74Da945, Aug. 30, 1974). In light of the reasoning of the judgment below, the plaintiff's assertion that the deceased non-party 5, who is the father of the above non-party 3, has occupied the land frequently cannot be recognized, and the above non-party 5, the non-party 3, and the non-party 6 have managed the land upon delegation of management from the deceased non-party 1, who is the father of the plaintiff. Accordingly, the court below's rejection of the defendant's defense for prescriptive acquisition is just, and the judgment below did not err in the misapprehension of the rules of evidence or in the misapprehension of the legal principles on autonomous possession.

The essay is groundless.

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

Justices Yu Tae-hee (Presiding Justice)