(영문) 대법원 2015.7.9.선고 2015다207860 판결

1. If the nature of the source of right to possess real estate is not clear, the possessor is presumed to have occupied in good faith, peace, and public performance with his/her own intent pursuant to Article 197(1) of the Civil Act. Such presumption is equally applicable to the possession by the State or a local government, which is the managing body of the cadastral record, etc., and even in cases where the possessor asserted the source of right, such as purchase and sale or donation, but this is not acknowledged, the presumption of possession with the sole reason that the source of right to possess real estate is not recognized unless the possessor bears the burden of proving the source of right, cannot be deemed to be reversed or the possession with the nature of the source of right (see, e.g., Supreme Court Decision 9Da72743, Feb. 26, 2002). Therefore, even if the State, etc. failed to submit documents concerning the procedure for acquiring land claiming the completion of acquisition by prescription, the circumstance and purpose of the possession, whether the State, etc., tried to exercise ownership, together with other land possession, can not be ruled out lawfully 174.

2. The court below rejected the defendant's assertion that "the acquisition by prescription has been completed since it occupied the land of this case as the owner's intention since the land category of the land of this case was changed to a 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 reveal the following facts.

① On June 23, 1914, G acquired ownership of 764 square meters (hereinafter “land before subdivision”).

① On May 1, 1916, the instant land was partitioned from the land before subdivision to 488 square meters (hereinafter referred to as “D land”) and 72 square meters (hereinafter referred to as “E”) prior to the Daegu-gun (hereinafter referred to as “D land”). At the same time, the land category was changed from the entire land to the road.

③ The instant land has been constructed on the ground around that time, and has continued to be used as a road for the nearest period of 100 years until now.

④ Meanwhile, on June 14, 1917, the owner’s name was changed from “G” to “I” to “I, and thereafter, the ownership was transferred by selling the instant land in sequence to third parties, such as M. However, as to the instant land, there remains no “G” as its owner, and no disposition was made to ensure that one hundred and twenty years have elapsed since the aforementioned division and change of land category were made. ⑤ The area of the instant land reaches 724 meters, and G or their successors were deemed to have been well aware of the fact that the instant land was being used as a road after the division, there was no objection or demand for compensation regarding the possession of the instant land.

(6) In accordance with the statutes and guidelines on the construction of a road that was enforced during the Japanese occupation period until the land category of the instant land was changed to a road, compensation for land to be incorporated into the road, and cadastral adjustment, there was a legal compensation procedure available for the owner of the instant land to receive compensation if the administrative agency expropriates private land.

(2) In full view of the circumstances surrounding the division and land category change of the instant land, the area of land to be used as a road, and the current status of a road on the instant land, there is sufficient room to deem that the Defendant started to occupy the instant land from the time when its land category was changed to a road.

In addition, examining the above circumstances in light of the legal principles as seen earlier, even though the cadastral record prepared during the Japanese occupation period as to the instant land remains nonexistent, and the Defendant did not submit the documents on the acquisition procedure of the instant land, it is highly likely that the instant land was occupied by the Defendant or occupied, the purpose of occupation, and the relationship between the disposal, use, and exercise of rights of the instant land and other land divided with the instant land, etc., by the State, etc. at the time of acquiring the ownership of the instant land. Therefore, it is difficult to view that the Defendant’s possession of the instant land is an unauthorized possession, and rather, it is reasonable to deem that the Defendant occupied the instant land frequently.

(3) Nevertheless, the lower court rejected the Defendant’s assertion that the instant land had been acquired by prescription solely on the grounds as indicated in its reasoning. In so determining, the lower court erred by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, and by misapprehending the legal doctrine on the acquisition by prescription, thereby failing

4. The judgment of the court below is reversed without further proceeding to decide on the remaining grounds of appeal, and the case is remanded to the court below for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.