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The judgment below is reversed, and the case is remanded to the Daegu District Court Panel Division.
Reasons
The grounds of appeal are examined.
1. If the nature of the source of possessory right of immovables is not clear, the possessor shall be presumed to have occupied in good faith, peace, and public performance by his own will pursuant to Article 197(1) of the Civil Act;
Such presumption is equally applied to cases where the State or a local government, which is the managing body of the cadastral record, takes possession of the State or a local government. Even in cases where the possessor asserts the title of possession, such as sale and purchase or donation, but this is not recognized, the presumption of possession with the sole reason that the source of possession right is not recognized unless the possessor bears the burden of proving the title of possession with respect to the original source of possession, cannot be deemed to have been reversed
(2) The State, etc. fails to submit a document regarding the procedure for acquiring land, the completion of which is claimed by the State, etc. (see, e.g., Supreme Court Decision 9Da72743, Feb. 26, 2002). Therefore, even if the State, etc. failed to submit a document regarding the procedure for acquiring the ownership, considering the following: (a) the circumstance and purpose of the possession; (b) whether the State, etc., made efforts to exercise the ownership after the State, etc. commenced possession; and (c) the use or disposal of divided land; and (d) the possibility that the State, etc. lawfully acquired the ownership by undergoing the procedure for acquiring public property
(See Supreme Court Decision 2010Da9473194748 Decided March 27, 2014). 2. The lower court rejected the Defendant’s assertion that “The prescriptive acquisition of possession was completed since the land category of the instant land was changed to the road, since it occupied the instant land as the owner’s intent from the time the land category was changed to the road.”
3. However, the lower court’s determination is difficult to accept for the following reasons.
(1) The reasoning of the lower judgment and the evidence duly admitted by the lower court.