Whether the presumption of possession with autonomy is reversed in a case where a possessor who claims the prescriptive acquisition knowingly purchases and possesses it (affirmative)

Although the possession of property devolving upon the nature of its title is deemed to fall under the possession of another owner in view of its title, 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 provides that the property devolving upon the State shall be gratuitously owned by the owner until the end of December 1964, since the property devolving upon the State shall not be sold until the end of January 1, 1965 and thereafter possess the property with the intention of ownership, it is possible to possess the property devolving upon the owner from January 1, 1965. However, even in this case, the possession of the property devolving upon the State shall not be naturally converted from the possession to the possession with the intention of another owner. Thus, the existence of the owner shall be determined externally and objectively by all circumstances related to the nature of the title giving rise to the acquisition by prescription, and thus, the possessor who claims the acquisition by prescription shall not be deemed to have satisfied the legal act or other legal requirements for the possession without permission.

Articles 197(1) and 245(1) of the Civil Act, Article 2 subparag. 1 of the Act on Special Measures for the Disposal of Property Belonging to Jurisdiction (Act No. 1346 of May 29, 1963), Article 5 of the Addenda

Supreme Court Decision 94Da4075 delivered on March 12, 1996 (Gong1996Sang, 1240) Supreme Court Decision 94Da41805 delivered on March 22, 1996 (Gong1996Sang, 1331), Supreme Court Decision 94Da505 delivered on June 28, 1996 (Gong1996Ha, 2321), Supreme Court Decision 95Da54204 delivered on November 29, 196 (Gong197Sang, 162), Supreme Court en banc Decision 96Da51875 delivered on March 28, 199 (Gong197, 1219), Supreme Court Decision 200Da52975 delivered on August 25, 197 (Gong1997, 195Da25979 delivered on August 29, 295).

Plaintiff 1 and six others

Korea

Daegu District Court Decision 97Na6252 delivered on May 15, 1998

The judgment of the court below is reversed and the case is remanded to the Daegu District Court Panel Division.

The grounds of appeal are examined.

1. According to the reasoning of the judgment below, the court below determined that the land of this case was owned by the non-party 1,189 square meters in Yong-si ( Address 1 omitted), river 248 square meters, river 289 square meters ( Address 3 omitted), and river 289 square meters (hereinafter referred to as "each land of this case"). It was originally one parcel, and it was divided into each land of this case around April 25, 1981, and the ownership transfer registration was completed on May 5, 1921 under the Act on the Disposal of Property Belonging to the State, and the defendant completed registration of preservation of ownership was completed on October 17, 195 under the name of the non-party 1, the non-party 2 purchased each land of this case from the non-party 3 on January 15, 1958 to the non-party 1, which was owned by the non-party 1, which was owned by the non-party 2, which was owned by the non-party 1, and the land of this case 350.

2. Although the possession of the property devolving upon the nature of the source of authority is deemed to fall under the possession of another owner in view of the nature of the source of authority, Article 2 subparag. 1 of the former Act on Special Measures for the Disposal of Property Belonging (Act No. 1346, May 29, 1963) and Article 5 of the Addenda provides that the property devolving upon the purchase contract which was not concluded by the end of December 1964 should be State-owned without compensation. Thus, it is possible to acquire the property devolving upon the expiration of the period from January 1, 1965 and thereafter possess the property with the intention of ownership. However, it is not naturally converted from the possession of another owner to the possession with the intention of ownership from the time of the commencement of possession. In this case, the existence of ownership is an external and objective possession with the knowledge of the nature of the source of authority or all other circumstances related to the possession at the time of the commencement of possession, and thus, it shall be deemed that the ownership without permission should be reversed (see, e.g., Supreme Court en banc Decision 97Da195).

According to the reasoning of the judgment below, the court below seems to have acknowledged that the non-party 2 purchased each of the instant land from the non-party 3 on January 15, 1958 and commenced possession thereof by comprehensively taking account of the contents of the sales contract (Evidence A No. 5) and the testimony of the non-party 4 by the witness of the first instance court

However, according to the records, Nonparty 4 did not make a direct statement as to the establishment of the authenticity of the above sales contract that the Defendant is a site, and the court below did not make a comparison with the copy of the above sales contract No. 5 attached to the records. However, this alone is insufficient to recognize the authenticity of the above sales contract, which was made on January 15, 1958, and there is no other evidence to acknowledge it. In addition, the purport of Nonparty 4’s testimony was a relative relationship with the Plaintiffs and was a child of 10 years old in around 1958. The purport of Nonparty 4’s testimony was also a child of 10 years old in 1958, who was his father, but was well aware of the specific contents. Thus, it is difficult to conclude that his statement was credibility enough to recognize the authenticity of the above sales contract and the fact of sale.

In addition, several questions may be raised about the contents of the above sales contract itself. First, although the contents of the above sales contract are relatively detailed about different matters (for example, subject matter of sale, large amount and method of payment, compensation for damages in the event of a default), the contents of the procedure for the registration of ownership transfer of each of the land of this case, which can be considered as a key matter in the sale and purchase of land, have not been entered, and it seems that the non-party 2 purchased the land of this case, which is the land of this case before the division, without knowing that the category of land of "Ycheon-gun-gun ( Address 1 omitted), is a river," which is the same price as the above ( Address 1 omitted) which is not specified in the lot number setting. In view of the entry of the sales contract, it seems that the monetary unit of this case has been purchased in this case.

Furthermore, even if Nonparty 2 purchased each of the instant lands, it is common to confirm in advance the ownership relationship, etc. by a certified copy of the register or cadastral record prior to the conclusion of the sales contract (see Supreme Court Decision 98Da62046, May 25, 199). In the case of a contract under the above sales contract, the receipts attached to the sales contract are determined only a unit price under the condition that the size of the subject matter of the sale and the purchase price have not been determined, and are paid after the settlement of the purchase price at KRW 283,00 (including the contract deposit). Thus, in order for the purchaser to understand the area of the subject matter of the sale necessary for the determination of the purchase price, it is deemed necessary to read the certified copy of the register or cadastral record, etc., and therefore, it cannot be ruled out that Nonparty 2 purchased each of the instant land with knowledge that it

Therefore, the court below should have reviewed the process of preparing the above sales contract, the subject matter of the sales contract, and the method of determining the price, etc. in detail, and confirmed whether Nonparty 2 purchased each of the instant land from Nonparty 3, and whether the subject matter of purchase is not the own land of this case, but the right to cultivate or occupy and use the instant land. Even if each of the instant land is deemed to have been purchased, the court below should have determined whether to reverse the presumption of possession with the result of the determination.

Nevertheless, the judgment of the court below which judged that the possession of the land of this case by Nonparty 2 was completed on January 1, 1965 as the possession of the land of this case was converted from January 1, 1965 to the independent possession on the part of the non-party 2, who purchased each of the lands of this case before that date without any determination of the defendant's assertion that the possession of each of the lands of this case was the possession of the owner of the land of this case, and it was erroneous in the misapprehension of the rules of evidence, the misapprehension of the legal principles as to the presumption of possession of the autonomous possession, the omission of judgment, and the incomplete deliberation, which affected the conclusion of the judgment, and therefore there

3. Therefore, without examining the remaining grounds of appeal, 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.

Justices Yoon Jae-sik (Presiding Justice)