(영문) 대법원 2018.7.12.선고 2016다209726 판결

The part of the judgment of the court below concerning each registration of preservation of ownership in attached Tables 1 and 2 shall be reversed, and that part of the case shall be remanded to the Seoul Central District Court. The remaining appeal shall be dismissed.

Reasons

The grounds of appeal are examined.

1. As to the grounds of appeal on each registration of preservation of ownership in attached Tables 1 and 2 of the judgment below

A. If the nature of the source of possessor’s right to real estate is not clear, the possessor is presumed to have occupied in good faith, peace, and public performance by his/her own will pursuant to Article 197(1) of the Civil Act. Such presumption is likewise applicable to cases where the State or a local government, which is the managing body of cadastral records, occupies the land (see, e.g., Supreme Court Decisions 2005Da36045, Jan. 1, 2006; 2006Da28065, Feb. 8, 2007).

In addition, the presumption that the possessor acquired possession on the basis of the title that appears to have no intention to own in the real estate due to its nature is broken down only when it is proved that the possessor had no intention to own the real estate, or when it is proven that the possessor had no intention to own the real estate in an external and objective manner, such as where the possessor did not act normally if the real owner did not act, which would have been likely to have been taken, and that the possessor did not have an intention to reject the ownership of another person (see, e.g., Supreme Court Decision 2005Da33541, Dec. 9, 2005).

Meanwhile, even if the State or a local government is unable to submit documents concerning the procedure for acquiring land claiming the completion of acquisition by prescription, it cannot be readily concluded that the State or a local government occupied the relevant land with the knowledge that there was another person registered as the owner in the cadastral record, etc. on the cadastral record, etc. on the ground that the cadastral record, etc. on the relevant land was lost in the form of 6.25 pages or nonexistent for any other reason. Rather, given that considering the details and purpose of occupation, etc., the possibility that the State or the local government lawfully acquired the ownership as a result of the procedure for acquiring public property at the time of the commencement of possession cannot be ruled out, it is difficult to deem that the State or the local government proves that it occupied the land without permission by being aware of such circumstance without the legal requirements for acquiring ownership. Accordingly, the presumption of autonomous possession of the relevant land cannot be reversed (see, e.g., Supreme Court Decisions 2007Da42112, Dec. 27, 2007; 208Da268, Oct. 14, 2010>

B. The court below rejected the defendant's defense against the defendant's defense that the period of prescription has expired by the defendant who occupied and used the land Nos. 1 and 2 of this case as a road site for not less than 20 years. Since there is no evidence to support that the defendant had the right to possess the land, such as taking the procedure for acquiring the property for public use or obtaining the owner's consent to use the land, it is difficult to view that the defendant occupied each of the above land as an owner's intent. However, according to the records, each of the above lands was occupied and used as a road since it was designated as a Y under Article 13 of the former Joseon City Ordinance on Dec. 1, 1938 as it was designated as a Y on Dec. 1, 1963 and as it was commenced to occupy and use it as a road until now after changing the name of 1963 and February 5 to Z, but the cadastral record on each of the above lands was restored to six and twenty five pages, according to the relevant provisions at the time of construction of each of the above land.

Therefore, examining these circumstances in light of the above legal principles, it cannot be ruled out that the defendant lawfully acquired ownership by undergoing the procedure for acquiring public property at the time of commencement of possession of each of the above land. Thus, the defendant's presumption of independent possession of each of the above land cannot be reversed solely on the ground that the defendant failed to submit the documents concerning the procedure for acquiring each of the above land.

Therefore, the judgment of the court below which rejected the defendant's defense of prescriptive acquisition because the defendant's presumption of independent possession of each of the above land was broken, was erroneous in the misapprehension of the legal principles on the presumption of independent possession and failing to exhaust all necessary deliberations, which affected the conclusion of the

2. As to the ground of appeal on registration of preservation of ownership in attached Table 2 Paragraph (3) of the judgment below

According to the reasoning of the judgment below, the court below rejected the defendant's assertion on the ground that there is insufficient evidence to support that the defendant lawfully succeeded to or acquired the above land or occupied it with the intention of ownership, and the prescription period has expired. In light of the relevant legal principles and records, the above judgment of the court below is just and it did not err by misapprehending the facts by failing to exhaust all necessary deliberations.

3. Conclusion

Therefore, among the judgment of the court below, the part concerning each registration of preservation of ownership in attached Tables 1 and 2 of the judgment below is reversed, and that part of the case is remanded to the court below for a new trial and determination, and the remaining appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.