Whether or not a person who has acquired possessory right by inheritance may assert that he has occupied only his own possession regardless of the possession of the inheritee.

If possessory right is acquired by inheritance, the inheritor may not claim any possession regardless of his own possession, unless he commences his own possession with a new title.

Articles 193 and 199 of the Civil Act

Supreme Court Decision 66Da194 delivered on March 29, 1966, 68Da2500 delivered on February 25, 1969, 72Da535,536 delivered on June 27, 1972

[Judgment of the court below]

Defendant

Busan District Court Decision 92Na2186, 2193 (Counterclaim) decided April 17, 1992

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

We examine the grounds of appeal.

Based on its reasoning, the court below recognized the fact that Non-party 1, the defendant's net denial non-party 1 newly built and occupied a building on the ground surface indicated in the annexed drawing(a)(b)(c) of the court below's judgment among the land in this case around 1943, after death of February 3, 1967, that the defendant occupied it individually, and subsequently succeeded to it in the order of succession, the claimant for the completion of the acquisition by prescription is presumed to have the right to assert only his own possession, or to have the right to assert both his own possession and possession, and then accepted the defendant's assertion as to this case on February 3, 1987, which was 20 years after the date of the commencement of the acquisition by prescription of the above land from February 3, 1967, which was 197.

However, in a case where possessory right is acquired through inheritance, the inheritor cannot assert that possessory right is regardless of possession of the inheritee unless he/she commences his/her own possession with a new title (see, e.g., Supreme Court Decision 4291Sang59, Jul. 2, 1957; Supreme Court Decision 66Da194, Mar. 29, 196; Supreme Court Decision 68Da2500, Feb. 25, 1969; Supreme Court Decision 72Da535,536, Jun. 27, 1972; Supreme Court Decision 72Da535,536, Jun. 27, 1972; Supreme Court Decision 2007Da1477, Apr. 6, 197).

Nevertheless, for reasons indicated in its holding, the lower court determined that the prescriptive acquisition of the above land portion was completed on February 3, 1987 and accepted the Defendant’s assertion would have affected the conclusion of the judgment by misapprehending the legal doctrine on the starting point of the possession of real estate acquisition in the case of succession to the possessor’s right by inheritance.

The argument pointing this out is with merit.

Therefore, the judgment of the court below is reversed and the case is remanded to the court below. It is so decided as per Disposition by the assent of all Justices.

Justices Kim Yong-ju (Presiding Justice)