In cases where a part of a building has been illegally constructed on another's land with the knowledge that it was illegally constructed, whether the possession of the site of the building is frequently occupied.

The possession with the intention to exercise the same control as the owner refers to the possession with the intention to hold it as the owner, and the existence of the intention to hold it must be determined by the nature of the source of authority, but even if the nature of the source of authority is unclear, it is presumed to be possession with the intention to hold it independently. Thus, even if part of the building was purchased with the knowledge that it was illegally constructed on the land owned by another person, and it was occupied and used as the site of the building, barring any special circumstances, the possession by the possessor constitutes possession with the inherent nature of the source of authority.

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

Supreme Court Decision 93Da18327, 18334 Decided April 29, 1994 (Gong1994Sang, 1603) Supreme Court Decision 94Da17475 Decided October 21, 1994 (Gong1994Ha, 3071) Supreme Court Decision 95Da18956 Decided September 15, 1995 (Gong195Ha, 3396)

Plaintiff 1 and one other (Law Office of the Seohae General Law Office, Attorneys Ansan-gu et al., Counsel for the plaintiff-appellant)

Defendant 1 and 3 others (Attorneys above-soo et al., Counsel for the defendant-appellant)

Seoul Private District Court Decision 94Na8371, 8388 delivered on November 3, 1994

The judgment of the court below is reversed, and the case is remanded to Seoul District Court Panel Division.

The defendants' attorney's grounds of appeal (if the supplemental appellate brief was not timely filed, to the extent of supplement) are examined as follows.

According to the reasoning of the judgment below, the court below determined that the defendants owned each building of this case over the land owned by the plaintiffs and the neighboring land owned by others, and possessed each part of the dispute of this case and occupied each part of the dispute of this case, and determined as to the defendants' claim for the prescriptive acquisition defense and counter-claim against the above part of the dispute, and rejected all the defendants' claim for the aforementioned prescriptive acquisition defense and counter-claim since it is difficult to view that the defendants purchased each of the buildings of this case, knowing that the land of this case was owned by others and part of each of the buildings of this case was constructed without title on the part of the dispute of this case, and it was recognized that each of the buildings of this case was constructed without title. Thus, it is reasonable to view that the defendants occupied the part of the dispute of this case with the intent to exclusively control the part of the land of this case as the owner.

However, in the case of the acquisition by prescription, possession means possession with the intention to exercise the same control as the owner, and the existence of the intention to hold it must be determined by the nature of the source of authority, but it is presumed possession independently even if the nature of the source of authority is not clear. Thus, even if the Defendants knew that part of each of the buildings of this case purchased by the Defendants was constructed without permission on the land of this case, the Defendants purchased each of the buildings of this case and occupied and used each of the buildings of this case as the site for each of the above buildings, barring any other special circumstances, the Defendant’s possession shall be deemed possession with the nature of the source of authority (see, e.g., Supreme Court Decisions 93Da18327, 18334, Apr. 29, 199; 94Da17475, Oct. 21, 1994; 95Da15865, Sept. 6, 195).

Therefore, the judgment of the court below is erroneous in the misapprehension of legal principles as to the possession with independence, which affected the conclusion of the judgment.

Therefore, without further proceeding to decide on the remaining grounds of appeal, 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.

Justices Chocheon-sung (Presiding Justice)