[1] Whether the possession of real estate by the State or a local government is presumed to have been occupied independently (affirmative)

[2] The case where the presumption of possession of real estate frequently is broken out in the acquisition by prescription

[3] The case holding that even if the State fails to submit documents concerning the procedure for acquiring land, the presumption of the State's autonomous possession was not broken in light of the purpose of the State's possession, the circumstance of the commencement of possession, and the cadastral record, etc. were all lost due to the disturbance

[1] Articles 197(1) and 245(1) of the Civil Act / [2] Articles 197(1) and 245(1) of the Civil Act / [3] Articles 197(1) and 245(1) of the Civil Act

[1] Supreme Court Decision 2005Da36045 Decided January 26, 2006, Supreme Court Decision 2006Da28065 Decided February 8, 2007, Supreme Court Decision 2007Da42112 Decided December 27, 2007 (Gong2008Sang, 133) / [2] Supreme Court Decision 2001Da77352, 77369 Decided March 15, 2002 (Gong202Sang, 891), Supreme Court Decision 2005Da33541 Decided December 9, 2005 (Gong206Sang, 114), Supreme Court Decision 2004Da381087, 3817, 38186, 3816, April 27, 2006

Defendant 1 and four others

[Defendant-Appellant] Plaintiff 1 and 1 other than the Republic of Korea

Seoul High Court Decision 2005Na105004 decided October 2, 2007

Among the part of the judgment below against the defendant in the Republic of Korea, the part concerning the claim for cancellation of registration for cancellation of registration for preservation of ownership and the part against defendant Spocheon-si shall be reversed, and this part of the case shall

The grounds of appeal are examined.

If the nature of the source of possessory right of real estate is not clear, the possessor is presumed to have occupied in good faith, peace, and public performance by his own will under Article 197(1) of the Civil Act. Such presumption applies likewise to cases where the possessor occupies the State or local government, which is the managing body of the cadastral record, etc. (see, e.g., Supreme Court Decisions 2005Da36045, Jan. 26, 2006; 2006Da28065, Feb. 8, 2007). Furthermore, with respect to the prescriptive acquisition of real estate, the presumption that the possessor acquired the possession on the basis of the source of right, which appears to have no intention to own by its nature, was proved, or the possessor did not act to have taken place as a matter of course if it was proved that the possessor had not had an intention to reject the ownership of another person and had no intention to occupy it (see, e.g., Supreme Court Decision 2005Da34545, Mar. 25, 2005).

The court below rejected the defendants' defense on the ground that the presumption of autonomous possession of the land of this case was broken, since the defendant Republic of Korea succeeded to the possession of the National Highway No. 4 of December 1, 1938 and the prescription for the acquisition of the land of this case was completed by the succession to the possession of the Korean National Highway No. 20 years or longer. As to the defense that the registration of preservation of ownership of the defendant Republic of Korea with respect to the land of this case was valid in accordance with the substantive legal relationship, and that the defendant Bocheon-si did not have a duty to return unjust enrichment, the court below invoked the precedents as stated in its holding. The defendants did not prove that the defendants failed to prove that the defendant has commenced the possession of the land of this case as the road site by the title that can occupy the land of this case, such as taking the procedure for acquiring the property for public use as stipulated in the State Property Act by the Republic of Korea

However, according to the records, the cadastral record of the land of this case was destroyed by the 6.25 columns, and restored on December 30, 1963. The land of this case was designated as the 4th line of the National Highway Notice No. 956 of December 1, 1938, and was occupied and used as a road. Since the land of this case was occupied and used as a road, it was currently transferred to Ycheon-si and is occupied and used as a road. According to the relevant provisions at the time of the construction of the road of this case, according to the relevant provisions at the time of the construction of the road of this case, the presumption of autonomous possession of the land of this case by the defendant's Republic of Korea shall be deemed as not broken, in light of the above legal principles.

Supreme Court Decision 97Da30349 delivered on May 29, 1998, which the court below invoked, held that the State or a local government has taken the procedure for acquiring public property prescribed by the Local Finance Act or the State Property Act, etc. or incorporated private land into a road site without a specific title capable of occupying the land, such as obtaining the consent of its owners, etc. However, even if the State fails to submit the documents related to the procedure for acquiring the land, it is not appropriate to invoke the above judgment in this case where it is not proved that the State occupied the land without permission in light of the circumstances where the cadastral record, etc. as to the land was destroyed by a disturbance, the State’s purpose of occupation, and the circumstances of the commencement of occupation, etc.

Therefore, the judgment of the court below which rejected the defendants' defense of the prescriptive acquisition on the ground that the presumption of independent possession of the land in this case was broken, was erroneous in the misapprehension of the legal principles as to the presumption of independent possession and failing to exhaust all necessary deliberations, which affected the conclusion of the judgment. The defendants' grounds of appeal pointing

Therefore, without further examining the remainder of the grounds of appeal in the judgment below, the part of the part against the Defendant Republic of Korea regarding the claim for cancellation of registration of preservation of ownership and the part against Defendant Spocheon-si shall be reversed, and this part of the case shall be remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Young-ran (Presiding Justice)