In a case where the state without a title to occupy the land and without a title to incorporate the private land into the state property, whether the presumption of possession with an intention to hold the land is broken (affirmative)

Articles 197(1) and 245(1) of the Civil Act

Supreme Court en banc Decision 95Da28625 Decided August 21, 1997 (Gong1997Ha, 2501) Supreme Court Decision 97Da30349 Decided May 29, 1998 (Gong1998Ha, 1749) Supreme Court Decision 201Da52017 Decided May 10, 2012 (Gong2012Sang, 989)

Plaintiff (Appointed Party) (Law Firm Hun-Ba, Attorneys Noh Jeong-chul et al., Counsel for the plaintiff-appointed party-appellant)

Korea

Seoul High Court Decision 2014Na2042743 decided March 26, 2015

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

In a case where it is proved that the possessor occupied the real estate owned by another person without permission knowing the existence of the legal act or any other legal requirements that may cause the acquisition of ownership at the time of the commencement of possession without permission, barring any special circumstance, the possessor shall not be deemed to have an intention to reject the ownership of another person and hold possession. Thus, the presumption of possession with the intention to own is broken (see Supreme Court en banc Decision 95Da28625 delivered on August 21, 1997). Thus, the presumption of the possession with the intention to own is broken (see Supreme Court Decision 95Da28625 delivered on August 21, 1997). The presumption of the autonomous possession is broken even in a case where the State incorporates the private land into the State property

According to the reasoning of the judgment below, the court below acknowledged the facts as stated in its holding, and held that since the defendant failed to submit the document on the grounds for acquiring each of the lands of this case and its procedure, since the registration register, etc. on each of the lands of this case was destroyed, it is difficult to conclude that the non-party continued to own each of the lands of this case from October 1, 1913 to April 10, 1962, since the defendant commenced to occupy each of the lands of this case, and among them, the defendant could have lawfully acquired the ownership of each of the lands of this case. In light of its reasoning, the court below determined that the defendant's possession of each of the lands of this case was dismissed and the prescription period for the defendant acquired each of the lands of this case was completed, on the grounds that it is insufficient to recognize that the defendant had commenced the possession without any legal requirements, which are the grounds for acquiring the ownership of each of the lands of this case, because the defendant's possession of each of

However, according to the records, on the old land cadastre of this case, which was destroyed by the Korean War on June 25, 1961 and restored around September 4, 1961, the owner entered the fact that the non-party, the party who was the representative of the plaintiff (appointed party), was the non-party, and thereafter, the above old land cadastre was changed to the State on the ground that the defendant did not have any grounds under the relevant intellectual laws and regulations as of August 22, 1963. In addition, on the records of this case, there was no evidence suggesting that the defendant occupied each of the land of this case as the site of military unit around April 10, 1962 until the completion of the registration of preservation of ownership was completed, and there was no evidence suggesting that the defendant acquired each of the land of this case, without being aware of possession of each of the land of this case from the occupation of the land of this case, the defendant did not have any legal title to each of the land of this case.

Nevertheless, the court below acknowledged the defendant's possession as an independent possession and determined that the prescription period for the defendant's possession of each land of this case has expired. The court below erred by misapprehending the legal principles on the presumption of an independent possession in the prescription period for the acquisition of real estate, thereby adversely affecting the conclusion of the judgment. The grounds of appeal assigning this error are with merit.

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.

[Attachment] List of Appointeds: Omitted

Justices Park Poe-young (Presiding Justice)