Whether the presumption of possession with autonomy can be reversed in a case where a local government or a state without title incorporates a private land into a road site (affirmative)

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

Supreme Court en banc Decision 95Da28625 delivered on August 21, 1997 (Gong1997Ha, 2501) Supreme Court Decision 97Da30349 delivered on May 29, 1998 (Gong1998Ha, 1749 delivered on September 18, 1998) 97Da27367, 27374 delivered on September 18, 1998

Plaintiff

Korea

Seoul High Court Decision 2008Na70376 decided February 5, 2009

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

The grounds of appeal are examined.

1. The lower court: (a) on October 15, 1917, the Plaintiff’s land record was destroyed on December 31, 1966; and (b) on August 19, 196, the land owned by the Defendant on the land of this case for which the period of 2 years elapsed since the Plaintiff’s possession of the land of this case was 81-12 square meters (hereinafter “the land of this case”) was 1,00,000,000,000,000,000,000,000,000,000,000,0000,000,000,000,000,000,0000,000,000,000,000,000,000,000,000,000,000,000,000,000,00,000.

2. However, we cannot agree with the judgment of the court below that the presumption of possession with respect to the land in this case cannot be deemed to have been reversed for the following reasons.

In a case where it is proved that the possessor occupied the real estate owned by another person without permission knowing the existence of the legal act or any other legal requirements that may cause the acquisition of ownership at the time of the commencement of possession without permission, barring any special circumstance, the possessor shall not be deemed to have an intention to reject the ownership of another person and hold possession. Thus, the presumption of possession with the intention to own is broken (see Supreme Court en banc Decision 95Da28625 delivered on August 21, 1997). The presumption of possession with the intention to own is broken (see Supreme Court Decision 97Da30349 delivered on May 29, 198; Supreme Court Decisions 97Da273674 delivered on September 18, 198; 97Da27374 delivered on September 27, 1998; see, e.g., Supreme Court Decision 97Da30349 delivered on May 29, 198).

The records reveal that Gyeonggi-do incorporated the instant land into a road site on November 26, 1982 and conducted the procedure for acquiring property for public use or obtained the consent of its owner for the use. On December 31, 1966, the forest land register for cadastral recovery on December 31, 1966 was stated as follows: on October 15, 1917, in the forest land register for cadastral recovery on the land before subdivision, it was entered as the fact that he was entered into the forest land register for cadastral recovery on December 30, 1976, but was entered as the owner’s unclaimed restoration. Thus, Gyeonggi-do is bound to have occupied the instant land without permission by being aware that it was an autonomous possession of the land by Gyeonggi-do or the Defendant without following lawful acquisition procedures.

Nevertheless, the lower court determined that the prescriptive acquisition has been completed by estimating the possession of Gyeonggi-do or the Defendant as an independent possession. In so doing, the lower court erred by misapprehending the legal doctrine on the presumption of independent possession, thereby adversely affecting the judgment

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Nung-hwan (Presiding Justice)