The burden of proof of possession with respect to prescriptive acquisition

Since the possessor's autonomous possession is presumed to be in accordance with Article 197 (1) of the Civil Act, in the acquisition by prescription of real estate, the possessor does not actively bear the burden of proving that the possession is an autonomous possession according to the nature of his title, and the possessor has the burden of proving that the possession is the owner.

Articles 197 and 245 of the Civil Act

Supreme Court en banc Decision 82Da708,709 Decided July 12, 1983; 82Meu1792,1793 Decided July 12, 1983

Plaintiff (Counterclaim Defendant)

Defendant-Counterclaim Plaintiff (Attorney Lee In-bok, Counsel for the plaintiff-appellant)

Seoul Civil District Court Decision 82Na2053, 2054 (Counterclaim) Decided April 8, 1983

The part of the judgment of the court below against the defendant shall be reversed, and that part of the case shall be remanded to the Panel Division of the Seoul Northern District Court.

We examine the grounds of appeal.

In the case of the acquisition by prescription of real estate, the possessor is presumed to have occupied the real estate in good faith, peace, and public performance as prescribed by Article 197(1) of the Civil Act even if the nature of the source of possessor’s right is not clear, according to the nature of the source of possessor’s right which has objectively caused the acquisition by possession, and as such, the possessor is presumed to have occupied the real estate in good faith, peace, and public performance. Therefore, the possessor is not obligated to prove that the possession is possession in accordance with the nature of the source of possessor’s right, and bears the burden of proof as to the possessor’s possession to the other party who asserts that the possession is the owner (see Supreme Court Decision 82Da708, 709, 709, Jul. 12, 1983; 82Meu1

According to the reasoning of the judgment below, the court below rejected the defendant's assertion that the above non-party 1 was owned by the non-party 2,170 prior to the above non-party 4's possession of the above land, but the non-party 1 did not own the above non-party 9's own land and sold it to the non-party 2, 22, 24, 26, 27, and 28's owner's non-party 1's owner's non-party 4's non-party 9's non-party 9's non-party 9's non-party 2's non-party 9's non-party 9's non-party 1's non-party 4's non-party 9's non-party 2's non-party 9's non-party 2's non-party 9's non-party 9's non-party 2's non-party 2's non-party 1's own land and the above non-party 3's non-party 4's non-party 9's.

However, as mentioned above, the presumption of possession with intention to hold possession is presumed to have been presumed by Article 197(1) of the Civil Act, and so long as the burden of proof as to the title of possession is not established to the possessor, the presumption of possession with intention to hold it cannot be deemed to be reversed or it cannot be viewed as the possession with intention to hold it. Therefore, the court below erred by misapprehending the legal principles on the acquisition by prescription in this point, and therefore, there is a reason to discuss the appeal against the Supreme Court precedents.

Therefore, the part of the judgment of the court below against the defendant is reversed and that part of the case is remanded to the Panel Division of the Seoul Civil Procedure District Court. It is so decided as per Disposition by the assent of all participating Justices

Justices Lee Il-young (Presiding Justice)