In a case where the possessor, with the knowledge of the absence of such legal requirements as to the acquisition of ownership at the time of the commencement of possession, occupied the real estate owned by another person without permission, without permission for the possession of the real estate owned by the State or a local government without permission for the acquisition of ownership at the time of the commencement of possession (affirmative in principle), and whether such legal principle also applies to a case where the State or a local government occupies the real estate (affirmative)

A possessor is presumed to have occupied in good faith, peace, and public performance with his own intent (Article 197(1) of the Civil Act). Thus, in principle, the possessor is not liable to prove his/her possession as his/her own intent when claiming the prescriptive acquisition. Rather, a person who seeks to deny the establishment of the prescriptive acquisition by asserting that the possession was not made with the intention of possession is in principle liable to bear the burden of proof. However, whether the possessor’s possession is an autonomous possession with the intention of possession is not determined by the possessor’s internal intent, rather than by the possessor’s internal intent, and should be determined externally and objectively in light of the nature of the title, which is the cause of the acquisition of possession, or all circumstances related to the possession, and thus, if the possessor illegally occupied another person’s real estate with the knowledge of the absence of such legal requirements without the legal act or any other legal requirements, barring any special circumstance, if he/she illegally occupies another person’s real estate with the knowledge of the absence of such legal requirements at the time of the commencement of possession, barr

This legal doctrine applies to cases involving possession by the State or a local government of a state or a local government. If the State or a local government occupies or uses private land without a specific title that may possess the land, such as the State or a local government’s payment of its own shares or donation, or obtaining the owner’s approval for use, barring any special circumstance, the presumption of possession with autonomy is broken, barring any special circumstance. However, even if the State or a local government fails to submit documents regarding the procedure for acquisition of land claiming the completion of prescriptive acquisition, the State or a local government may not exclude the possibility of lawful acquisition of ownership by undergoing the procedure for acquisition of public property at the time of the commencement of possession, given that the State or a local government’s acquisition of ownership could not be ruled out, inasmuch as it is difficult to view that the State or a local government is aware of such circumstance without the legal requirements for acquisition of ownership

Articles 197(1) and 245(1) of the Civil Act

Supreme Court en banc Decision 95Da28625 Decided August 21, 1997 (Gong1997Ha, 2501), Supreme Court Decision 2009Da32553 Decided September 10, 2009, Supreme Court Decision 2010Da33866 Decided August 19, 201 (Gong2010Ha, 1790)

Plaintiff (Attorney Kim Byung-hun et al., Counsel for the plaintiff-appellant)

Republic of Korea (Government Law Firm Corporation, Attorneys Choi Jong-chul et al., Counsel for defendant-appellant)

Seoul High Court Decision 2016Na2018263 decided April 20, 2017

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. The possessor is presumed to have occupied real estate without permission in good faith, peace, and public performance (Article 197(1) of the Civil Act). As such, in principle, the possessor is not liable to prove that he/she has occupied the real estate with his/her intent to own when claiming the acquisition by prescription, and rather, a person who seeks to deny the establishment of the acquisition by prescription by asserting that the possession was not made with his/her intention to own. However, the possessor’s intention to possess is not determined by the internal intent of the possessor, but by the external and objective determination in light of the nature of the title that caused the acquisition by possession or all the circumstances related to the possession, rather than by the occupant’s intention to hold the possession. Therefore, inasmuch as the possessor’s intention to possess real estate without permission without permission, barring any special circumstances, if he/she occupied real estate of another person with knowledge of the absence of legal requirements such as legal act that may cause the acquisition by ownership at the time of the commencement of possession, barring any special circumstance, the possessor shall be deemed not to have expressed his/her intention to occupy the ownership (see Supreme Court en banc Decision 25265Da.

This legal doctrine applies to cases involving possession by the State or a local government of a state or a local government. If the State or a local government has occupied or used private land without a specific title, such as the State or a local government’s payment of its own contributions or the acquisition of public property under the State Property Act, the Local Finance Act, etc., or the owner’s approval for use, barring special circumstances, the presumption of possession independently should be deemed broken, barring any special circumstances. However, even if the State or a local government fails to submit documents on the acquisition procedure of the land for which the completion of acquisition by prescription is claimed, the possibility of lawful acquisition of ownership cannot be ruled out due to the State or the local government’s acquisition procedure of the public property at the time of commencement of possession, taking into account the developments and purpose of the possession, etc., in a case where the State or the local government’s acquisition of the land for public use can not be deemed as having been verified without a consent from the State or the local government without a legal requirement for the acquisition of the ownership (see, e.g., Supreme Court Decisions 2009Da3256366, Sept.

2. A. The court below rejected the plaintiff's assertion that since the defendant's installation of the wall of this case around 1986 and the possession of the land of this case owned by the plaintiff located inside the wall of this case until now since the commencement of the possession, its possession is presumed to have been occupied in peace and openly with its own intent. Thus, the defendant's prescriptive acquisition of the land of this case was completed on December 31, 2006 after 20 years from 1986 and 20 years from 1986.

B. Review of the reasoning of the lower judgment and the record reveals the following facts.

(1) The Plaintiff completed the registration of ownership transfer on June 26, 1998 with respect to forest land of 14,803 square meters in Gangseo-gu Seoul Metropolitan Government ( Address 1 omitted) (hereinafter “instant land before the instant partition”). After that, the said land was divided on April 18, 2014, and was ( Address 2 omitted), 12,489 square meters in forest land ( Address 2 omitted), 12,489 square meters in forest land ( Address 4 omitted), and 1,214 square meters in forest land ( Address 4 omitted) (hereinafter “instant land”).

(2) On February 22, 1975, the Defendant completed the registration of ownership transfer for reasons of reversion of rights on September 11, 1948 with respect to forest land 51,408 square meters adjacent to the land prior to the instant partition, Gangseo-gu Seoul ( Address 5 omitted) Gangseo-gu, Seoul (hereinafter “instant adjacent land”).

(3) From November 22, 1969, the Defendant constructed and managed a building with the Ministry of Agriculture, Food and Rural Affairs, the Ministry of Agriculture, and Food and Rural Affairs under its neighboring land. Around 1986, the Defendant installed a mentmen block gate (hereinafter “instant wall”). In addition, around 195, the Defendant constructed a new building with the Agricultural and Forestry Quarantine and Quarantine Headquarters Laboratory Laboratory (hereinafter “instant building”) on the neighboring land of this case, and some of them are located within 14m2 (hereinafter “the instant building”).

(4) The Defendant currently occupies and uses, based on the instant land, the land of this case, the section 771 square meters in size and the section 785 square meters in total, 14 square meters in size (hereinafter “instant land”).

(5) The Defendant did not submit any material supporting the existence or possibility of taking the procedure for acquiring the ownership of the pertinent land in dispute.

C. Examining these facts in light of the legal principles as seen earlier, it is evident that the Defendant without title possessed the land in the instant case without taking necessary measures, such as purchasing the land in the instant case owned by the Plaintiff or taking necessary measures, such as accepting donation, etc., for the acquisition of public property as prescribed by the State Property Act, etc. In light of the circumstance and purpose of the possession, it does not constitute a case where there is any circumstance under which the possibility that the Defendant would have lawfully acquired the ownership in light of the circumstance and purpose of the possession. Therefore, the presumption that the possession of the Defendant’s possession of the land in the instant case was broken down

Nevertheless, the lower court determined otherwise based on its stated reasoning that it is insufficient to reverse the presumption of the Defendant’s possession of the land in the dispute of this case as the possession without bad faith or as the possession with bad faith. In so doing, the lower court erred by misapprehending the legal doctrine on the presumption of the possession with intention to hold it, thereby adversely affecting the conclusion of the judgment

3. Therefore, without examining the remaining grounds of appeal, the judgment of the court below is reversed, and the case is 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 Ko Young-han (Presiding Justice)