[1] Where the property devolving upon the State becomes State property from January 1, 1965 under the Act on Special Measures for the Disposal of Property Belonging to the State, whether the possession of the property devolving upon the State naturally is converted from the possession of the property to the possession of the other State (negative), and the standard for determining whether the property devolving upon the State is owned or not

[2] The legal nature of the possession in a case where a person who was not authorized to dispose of real estate knowingly acquired such real estate or acquired such real estate by a juristic act and possessed it, knowing that a certain juristic act is null and void (=the other possession)

[3] Whether the presumption of possession with autonomy is reversed in a case where a possessor who claims the prescriptive acquisition knowingly purchased and possessed the property devolving upon his/her knowledge (affirmative)

[1] According to Article 2 subparagraph 1 of the former Act on Special Measures for the Disposal of Property Belonging to the State (Act No. 1346 of May 29, 1963) and Article 5 of the Addenda, since Article 2 subparagraph 1 of the same Act and Article 5 of the Addenda stipulate that property devolving upon the State, the sales contract of which was not concluded by the end of December 1964, shall be state-owned free of charge. Thus, the property devolving upon the State shall become state-owned property from January 1, 1965 and thereafter possess it at the will of ownership, but it is possible to possess it at the end of that date. However, the possession does not naturally become state-owned independently from that time. In this case, the existence of ownership shall be determined externally and objectively by the nature of the title, which was the cause of the acquisition at

[2] The intention of possession, which is the requirement for the acquisition by prescription, is objectively determined by the nature of the source of possessory right: Provided, That even if the nature of the source of possessory right is not clear, if the source of possessory right is presumed to have been possessed as the intention of possession under Article 197(1) of the Civil Act, it shall not be deemed to have been possessed as the intention of possession at the time of the commencement of possession, since it is a person who, in the commencement of possession, has been aware that the source of possessory right was acquired from a person without the right to dispose of real estate, or a juristic act was acquired and occupied by acquiring real estate through the juristic act, knowing that the acquisition of real estate

[3] According to the provisions of subparagraphs 2 and 33 of the Act of the United States Army Headquarters, Article 5 of the first Agreement on Treasury and Property between the Republic of Korea and the United States of America, and Articles 4, 34, and 40 of the Act on the Disposal of Property Belonging to the State, Japan, etc. after August 9, 1945, the property existing in the jurisdiction of the State, Japan, etc. was owned by the State, the Government, and Japan since September 25, 1945, which was transferred to the Republic of Korea as of September 11, 1948, and the possessor was merely transferred to the Republic of Korea as of September 11, 1948, and thus has no authority to dispose of the property devolving to dispose of it, even if there was no authority to dispose of the property devolving to dispose of it, the presumption of possession should be reversed in light of the above legal principles.

[1] Articles 197(1) and 245(1) of the Civil Act; Article 2 subparag. 1 of the former Act on Special Measures for the Disposal of Property Belonging to the State; Article 5 of the Addenda / [2] Articles 197(1) and 245(1) of the Civil Act / [3] Articles 197(1) and 245(1) of the Civil Act / [3] Articles 197(1) and 245(1) of the Civil Act; Article 2 subparag. 1 of the former Act on Special Measures for the Disposal of Property Belonging to the State (Act No. 1346, May 29, 1963); Article 5 of the Addenda

[1] [3] Supreme Court Decision 98Da28442 delivered on April 11, 200 (Gong200Sang, 1155) / [1] Supreme Court Decision 94Da54924 delivered on November 28, 1995 (Gong196Sang, 153), Supreme Court Decision 95Da54204 delivered on November 29, 1996 (Gong1997Sang, 167Sang, 1675 delivered on March 28, 1997 (Gong197Sang, 1219), 9Da56215 delivered on December 7, 199 (Gong200, 150) / Supreme Court Decision 96Da39794 delivered on March 29, 197 (Gong19635 delivered on March 29, 196) / [309Da1963981 delivered on May 19, 1997

Mod Private Teaching Institutes et al. (Attorneys Kim Jong-soo, Counsel for the plaintiff-appellant)

Korea

Daegu District Court Decision 98Na951 delivered on June 4, 1999

All appeals are dismissed. The costs of appeal are assessed against the plaintiffs.

1. Article 2 subparagraph 1 of the former Act on Special Measures for the Disposal of Property Belonging to the State and Article 5 of the Addenda stipulate that property devolving upon the State shall be State free of charge until the end of December 1964. Thus, property devolving upon the State shall be State property from January 1, 1965 and thereafter possess it at the will of ownership (see, e.g., Supreme Court Decision 96Da51875, Mar. 28, 1997). However, such possession does not naturally become State property independently from that time. In this case, the existence of ownership shall be determined externally and objectively on the basis of the nature of the source of ownership, which was the cause of the acquisition of possession at the time of the commencement of possession, or all circumstances related to the possession (see, e.g., Supreme Court Decisions 94Da54924, Nov. 28, 1995; 95Da54979, Nov. 29, 295).

In addition, the intention of possession, which is the requirement for the acquisition by prescription, is objectively determined by the nature of the source of possessory right. However, even if the nature of the source of possessory right is not clear, if the source of possessory right is presumed to have been possessed with the intention of possession pursuant to Article 197(1) of the Civil Act, it shall not be deemed to have been possessed with the intention of possession at the time of the commencement of possession, since it is a person who, in the commencement of possession, knowingly acquired real estate from an unauthorized person or acquired it through a juristic act while knowing that a certain juristic act is null and void, he is already aware that the ownership of the real owner is excluded and that he cannot be exclusively controlled as his own property (see, e.g., Supreme Court Decisions 91Da3751, May 8, 1992; 94Da5341, Nov. 24, 195; 97Da3761, Mar. 16, 200).

Meanwhile, according to the provisions of subparagraphs 2 and 33 of the Act of the United States Army Headquarters, Article 5 of the first Agreement on the Treasury and Property between the Republic of Korea and the United States of America, and Articles 4, 34, and 40 of the Act on the Disposal of Property Belonging to the State, Japan, etc. since August 9, 1945, the property existing in the jurisdiction of the State, a Japanese government, or a Japanese person, etc., was owned by the State, the United States, as of September 25, 1945, became owned by the State, the property was transferred to the Republic of Korea as of September 11, 1948, and the possessor was merely transferred to the Republic of Korea as of September 11, 1948, and thus, was null and void even if there was no authority to dispose of the property devolving to dispose of it (see Supreme Court Decision 85Meu2397, Nov. 25, 1986).

2. According to the reasoning of the judgment below, the court below rejected the plaintiff's claim on the ground that the plaintiff corporation's possession of the land in this case of this case of this case of this case of this case of which the presumption of possession without permission was broken down immediately on the ground that the plaintiff corporation's possession of the land in this case of this case of this case of this case of this case of this case of this case of this case of which possession by the intention of possession for twenty (20) years since January 1, 1965, without reliance on evidence consistent with the facts of purchase for the reasons stated in its reasoning.

However, according to the records, the land of this case was owned by the non-party who was Japan as of August 9, 1945, and even according to the plaintiff's assertion, the plaintiff corporation acquired possession of the land of this case from the above Japan around 1948. Thus, barring special circumstances, the plaintiff corporation will acquire possession of the land of this case from the non-authorized person even though it was not authorized to dispose of the land of this case. Thus, the plaintiff corporation cannot be deemed to have occupied the land of this case independently at the time of commencement of possession of the land of this case in accordance with the above legal principles.

Although the court below's explanation about the reversal of the presumption of independent possession is somewhat insufficient, the conclusion that the plaintiff's possession was not recognized at the time of the commencement of possession is just, and since January 1, 1965 when the land of this case was owned by the state, the possession of the plaintiff's corporation from January 1, 1965 to the possession is not converted into the possession independently.

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

Justices Lee Yong-hun (Presiding Justice)