(a) Whether the presumption of possession with intention to own is reversed where the possessor is not recognized as the source of possessory right; and

(b) If the registration of ownership transfer has been completed to a third party after the completion of the acquisition by prescription and the ownership has been restored to the owner at the time of the completion of the acquisition by prescription, whether the claim for the acquisition by prescription is

A. In the case of prescriptive acquisition, the intention of possession, which is the requirement for possession with intention to hold it objectively, is determined by the nature of the source of possessory right, but if the nature of the source of possessory right is not clear, the possession is presumed to be in accordance with Article 197(1) of the Civil Act. Thus, the possessor does not have the responsibility to prove the nature of the source of possessory right to support his own possession, and the possessor does not have the responsibility to prove the nature of the source of possessory right to support his own possession, and the other party who asserts the possession with the burden of proof as to the possession with regard to the possession with the intention to hold it as the owner. Even if

B. Even if the period of prescription for the acquisition of ownership by possession of real estate has expired, if the transfer of ownership is completed to a third party with respect to the real estate, the possessor cannot oppose the third party by the prescriptive acquisition. However, the possessor does not lose the right to claim the transfer of ownership due to the prescriptive acquisition against the owner at the time the prescriptive acquisition has expired, but is merely impossible to perform the obligation to transfer ownership to the possessor at the time of the completion of the prescriptive acquisition. Thus, if the ownership is restored to the owner at the time of the completion of the prescriptive acquisition for any reason, the possessor may assert the effect of the prescriptive acquisition to the owner.

(a)Article 245(a) of the Civil Code, article 197(1);

A. Supreme Court Decision 85Meu771 delivered on February 25, 1986 (Gong1986,524) 90Da18838 delivered on July 9, 1991 (Gong1991, 2115) 91Da6139 delivered on July 12, 1991 (Gong1991, 2149)

Plaintiff

Defendant

Seoul Civil District Court Decision 92Na19100 delivered on July 9, 1993

The appeal is dismissed.

The costs of appeal are assessed against the defendant.

We examine the grounds of appeal.

1. In light of the records, the fact-finding by the court below is acceptable, and there is no violation of the rules of evidence or incomplete trial.

2. Although the intention of possession, which is an objective element for the acquisition by prescription, is objectively determined by the nature of the source of possessory right, if the nature of the source of possessory right is not clear, the possessor is presumed to hold possession independently pursuant to Article 197(1) of the Civil Act. Thus, the possessor does not bear the burden of proving the nature of the source of possessory right to back his own possession. The possessor, who asserts that he is the possessor, bears the burden of proving the nature of the source of possessory right. Even if the possessor asserts the title of possession, such as the sale, but is not recognized by himself, the presumption of possession cannot be reversed or it cannot be deemed as the owner's possession, by nature of the source of possessory right (see, e.g., Supreme Court Decisions 85Meu71, Feb. 25, 1986; 90Da1838, Jul. 9, 191). 19, the court below, as acknowledged by the court below, did not err in the misapprehension of the legal principle as to the deceased's possession on the site.

3. Even if the period of prescription for the acquisition of ownership by possession of real estate has expired, if the transfer of ownership is completed to a third party with respect to the real estate without registration, the possessor cannot oppose the third party by the prescriptive acquisition. However, the possessor does not lose the right to claim the transfer of ownership due to the prescriptive acquisition against the owner at the time of the completion of the period of the acquisition by prescription, but is merely impossible to perform the right to claim the transfer of ownership against the possessor at the time of the completion of the acquisition by prescription. Thus, if the ownership has been restored to the owner at the time of the completion of the acquisition by prescription for any reason, the possessor may claim the effect of the prescriptive acquisition to the owner (see, e.g., Supreme Court Decision 65Da157,158, Apr. 13, 1965; Supreme Court Decision 90Da1425, Jun. 25, 1991).

Therefore, as recognized by the court below, as of May 1, 1981, the acquisition by prescription was completed, and as of May 2, 1981, the defendant and other co-owners registered as co-owners with respect to the land in Dongdaemun-gu Seoul ( Address omitted) in Dongdaemun-gu, Seoul as at the time of the completion of the acquisition by prescription as at the time of the division into the land in this case. If the land in this case was registered as co-ownership in the register after the registration of ownership transfer was completed in the name of Nonparty 3 and Nonparty 4 as at the time of the partition of co-owned property, and if the registration of ownership transfer was completed in the defendant's future as to one-half of the two-half shares, the plaintiff can claim the effect of the acquisition by prescription against the defendant, who is the co-owner at the time of the completion of acquisition by prescription

Therefore, there is no reason to discuss all.

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 Kim Jong-soo (Presiding Justice)