[1] Whether the presumption of possession with autonomy is broken solely on the ground that the state or local government fails to submit documents concerning the procedure for acquiring the land for which the completion of prescriptive acquisition is claimed (negative)

[2] In a case where Eul corporation, the subsidiary company of Gap bank, transferred the management work of access roads among the construction and operation of private roads to Byung local government Byung, and Byung possessed the land included in the above access roads since that time, and Gap bank completed the registration of ownership transfer against Eul bank after receiving a favorable judgment of confession against Eul company, and Byung local government filed for the registration of ownership transfer against Gap bank due to the completion of the prescription period for acquisition of possession of the above land, the case holding that the judgment below erred by misapprehending the legal principles in holding that Byung local government's presumption of autonomous possession of the above land was broken

[1] Even if the State or a local government fails to submit a document regarding the procedure for acquisition of the land, where the State or a local government asserts the completion of acquisition by prescription, it shall not be deemed that the State or a local government has proved that it has occupied the land without permission, and thus, it is difficult to deem that it has been proven that it has been occupied without permission without permission, in light of various circumstances, such as the details and purpose of the possession, whether the State, etc. made an effort to exercise ownership on the cadastral record, etc. after the State, etc. commenced possession, and whether the State, etc. tried to use the land in the cadastral record, etc., as well as the use or disposal of divided land.

[2] In a case where Eul corporation, a subsidiary company of Gap bank, transferred the business of managing access roads to Byung local government while constructing and operating Eul bank's private roads, and Byung local government possessed the land incorporated into the above access roads from around that time, and Eul bank completed the registration of ownership transfer for the above land upon winning a favorable judgment against Eul company, and Byung local government filed for the registration of ownership transfer for the above land due to the completion of the prescription period for acquisition of possession against Eul bank, the case holding that the judgment below rejected the claim for the completion of the prescription period for acquisition of possession based on the misapprehension of legal principles as to the presumption of autonomous possession and the reversal of the judgment below, although Byung did not submit documents on the ground that Eul's local government did not possess specific contents at the time of possession of the above land, although it is somewhat unclear at the time of Byung's local government's possession, and it is sufficiently possible that Eul company transferred the above land's ownership to Byung local government Byung, barring any other special circumstances.

[1] Articles 197(1) and 245(1) of the Civil Act / [2] Articles 197(1) and 245(1) of the Civil Act

[1] Supreme Court Decision 2010Da94731, 94748 Decided March 27, 2014 (Gong2014Sang, 915) Supreme Court Decision 2019Da23620 Decided October 17, 2019

Ulsan Metropolitan City (Law Firm LLC et al., Counsel for the plaintiff-appellant)

Han Bank Co., Ltd. (Law Firm LLC et al., Counsel for the defendant-appellant)

Busan High Court Decision 2019Na51607 decided October 30, 2019

The part of the judgment of the court below concerning the conjunctive claim is reversed, and that part of the case is remanded to Busan High Court. The appeal as to the plaintiff's primary claim is dismissed.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Case summary

According to the reasoning of the lower judgment and the record, the following facts are revealed.

A. On August 2, 1976, the Korea Trust Bank, a stock company, was merged with the Seoul Bank and the Han Bank on December 2, 2002, and the foreign exchange bank on September 1, 2015, respectively, and became the Defendant (hereinafter “Defendant”). On February 28, 1969, the Defendant established the Korea Trust Bank, a subsidiary company, for the purpose of managing and operating the infrastructure (hereinafter “Korea Trust”)

B. On June 19, 1969, the Han-new real estate obtained permission from the Minister of Construction and Transportation for the construction of a charged expressway between Ulsan and Ulsan pursuant to Article 12 of the former Toll Road Act (amended by Act No. 2189, Jan. 1, 1970; hereinafter “former Toll Road Act”). Around that time, the construction of the above expressway was commenced and obtained approval for the use on December 29, 1969 (hereinafter “the above expressway”)

C. The 15.746km road of this case consists of the section of the toll road of 14.341km from the GyangIC to the Glsan-si New Uniform (hereinafter “Ulsan Highway”) and the section of the 1.405km road from the Jlsan-si to the Glsan-si, Ulsan-si (hereinafter “the access road of this case”).

D. The new real estate purchased each land listed in the separate sheet (hereinafter “each land of this case”) as stated in the decision of the court below as to the access road of this case and completed the registration of ownership transfer between December 1969 and July 1970.

E. After February 19, 1975, the Plaintiff transferred the management work of the access road to the instant case from Han Jae real estate and occupied each of the instant land around that time.

F. On November 9, 1974, the Defendant filed a lawsuit against Han New Real Estate seeking the implementation of the procedure for the registration of ownership transfer based on the succession contract as of November 19, 197, and received a favorable judgment on June 10, 1997 (Seoul District Court Decision 97Dahap23377), and completed the registration of ownership transfer as to each of the instant lands on August 18, 197.

G. On April 2, 2018, the Plaintiff filed the instant lawsuit seeking the registration of ownership transfer on the ground that the Plaintiff’s acquisition by prescription of possession of each of the instant land was completed, on the grounds that each of the instant land was donated primarily.

2. Judgment on the grounds of appeal as to the primary claim

The lower court determined to the effect that it is difficult to readily conclude that an agreement was concluded between the Defendant and the Korea Highway Corporation, etc. on the donation of each of the instant land, which was part of the site of the access road.

Examining the reasoning of the lower judgment in light of the record, the lower court did not err in its judgment by misapprehending the legal doctrine regarding the probative value of official documents, the formation of a contract for a third party, the formation of contribution acceptance, the interpretation of intent, the principle of trust and good faith, or by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, contrary to what is alleged

3. Judgment on the grounds of appeal as to the conjunctive claim

A. The judgment of the court below

Based on the circumstances indicated in its holding, the court below presumed that the Plaintiff’s possession of each of the instant lands constitutes possession based on the title that appears to have no intention to own in view of its objective nature, or the Plaintiff’s possession with an intention to exclusively control each of the instant lands by excluding the Defendant’s ownership, as its own property, constitutes an objective circumstance, and determined that the Plaintiff’s possession of each of the instant lands constitutes possession with the intention to own the instant lands, and determined that the Plaintiff’s possession of each of the instant lands constitutes possession with the intention to own the instant lands. Accordingly, the court below dismissed the Plaintiff’s preliminary claim seeking the registration of ownership transfer due to the completion of the statute of limitations for

B. Judgment of the Supreme Court

However, it is difficult to accept the judgment of the court below for the following reasons.

1) Even if the State or a local government fails to submit a document regarding the procedure for acquisition of the land, where the State or a local government asserts the completion of acquisition of acquisition, it shall not be deemed that the presumption of possession of the land is not broken down, in view of the following: (a) in cases where the State or a local government is unable to exclude the possibility that the State or a local government has lawfully acquired the ownership through the procedure for acquisition of public property at the time of the commencement of possession, in view of the following: (b) the details and purpose of the possession; (c) whether the State, etc. has endeavored to exercise the ownership on the cadastral record, etc. after the State, etc. commenced possession; and (d) the use or disposal of other land divided by division; and (c) the State or a local government, etc., of the land possessed by the State or a local government, with the knowledge of such circumstance without the legal requirements for acquisition of ownership (see, e.g., Supreme Court Decisions 2010Da94731, Mar. 27, 20

2) Review of the reasoning of the lower judgment and the record reveals the following facts.

A) The Defendant invested the high interest trust assets in projects such as social overhead capital facilities implemented by Korea-Japan. The new real estate was constructed as social overhead capital facilities by constructing the instant public roads, tunnels No. 1 in Namsan, and the North Korean traditional music tunnels, etc., and performed projects to create housing sites, etc. at various national areas, and accordingly, the deficit of the new real estate was accumulated.

B) Accordingly, from August 1971, the Defendant, the Han new real estate, the construction division, the Korea Expressway Corporation, etc. discussed measures to dispose of the instant public roads from around August 12, 1971, and on August 12, 1974, the Korea Expressway Corporation agreed to take over the instant public roads.

C) Since September 14, 1974 to October 14, 1974, the Defendant and the Korea Expressway Corporation consulted on a concrete plan for the handovering and taking over of the instant public-private partnership road four times. At the time, the Korea Expressway Corporation presented its opinion to the effect that the instant public-private partnership road is not an expressway, and thus, it cannot accept the instant public-private partnership road, and therefore, it cannot pay the amount of the instant access road construction. However, as the access road was constructed as part of the instant public-private partnership road, the Defendant suggested that the Korea Expressway Corporation should take over the instant public-private partnership road.

D) In the course of the consultation, the Korea Expressway Corporation, etc. presented a plan to contribute access roads of this case to the Plaintiff since it is the road within the Plaintiff’s city. At the time of the conference on October 14, 1974, the Defendant, etc., at the time of the conference on October 14, 1974, demanded that the Korea Expressway Corporation bear an amount equivalent to 1/2 of the construction costs of access roads of this case, and the Korea Expressway Corporation received the Defendant’s request.

E) According to the above conference of October 14, 1974, the Korea Expressway Corporation concluded a contract to acquire the Ulsan Expressway and all facilities attached thereto from the Korea Highway Corporation on October 15, 1974, with a view to acquiring it in KRW 2,855,722,688. The above acquisition price includes KRW 76,849,113, which is 1/2 of the access road construction cost of this case. At the time, the defendant guaranteed the obligation for the above transfer and acquisition contract of the new real estate.

F) On October 28, 1974, the Korea Highway Corporation transferred the management authority of the instant privately financed road to the Korea Highway Corporation, and obtained the permission for its transfer from the Construction Division on October 30, 1974. Meanwhile, on February 19, 1975, the Plaintiff transferred the management authority of the access road of this case from the new real estate to the Korea Highway Corporation, and thereafter occupied the access road of this case from around that time.

G) On November 9, 1974, the Korea Real Estate concluded a succession contract with the Defendant to the effect that “the Defendant succeeds to the remaining assets and liabilities of the Korea Real Estate, including the instant land,” and subsequently completed the liquidation registration on October 8, 1975 through bankruptcy proceedings.

3) Examining the following circumstances revealed through such factual relations and records in light of the legal principles as seen earlier, even though the Plaintiff failed to submit evidence as to the fact that each of the instant lands was donated from the Han real estate as alleged by the Plaintiff, the presumption of possession of each of the instant lands is reversed, barring any special circumstance, since the specific content is somewhat unclear at the time the Plaintiff occupied each of the instant land, but it is sufficiently possible for Han-han Real Estate to transfer the ownership of each of the instant lands to the Plaintiff.

A) Due to the defect of new real estate invested by the Defendant, the Korea Highway Corporation has made a provisional agreement to acquire the instant public-private partnership roads. Since the access roads of this case are part of the instant public-private partnership roads, the Korea Highway Corporation originally intended to transfer the access roads of this case to the Korea Highway Corporation.

B) However, the Korea Highway Corporation presented its opinion that it is difficult to accept the access road of this case since the access road of this case is not an expressway but a road within the city of the plaintiff, and the defendant had the position to accept the access road of this case.

C) At the time of the Korea Highway presented a scheme of donation of the access road of this case to the Plaintiff. At the conference on October 14, 1974, the Defendant offered that if the Korea Expressway bears 1/2 of the construction cost of the access road of this case, the issue of the access road of this case and the issue of the Plaintiff will be responsible for and resolved. The Defendant accepted the Korea Expressway Corporation. The Defendant’s proposal purport that the Plaintiff would transfer the access road of this case to the Plaintiff regardless of what content the Defendant would transfer, and it is difficult to view that the Defendant or the Korea Expressway Real Estate will continue to hold the access road of this case even after receiving 1/2 of the construction cost of the access

D) A public official in charge of construction division attending the meetings of the Korea Highway Corporation and the Defendant, etc. on October 14, 1974, and prepared a report on the result of the meetings, and stated that “the access road of this case among the public-private partnership roads of this case shall be transferred to the Plaintiff by the Defendant in the form of donation.” Accordingly, it seems that the public official in charge of construction division attending the meetings of this case is understood that the Defendant would transfer the access road of this case to the Plaintiff.”

E) According to the above conference of October 14, 1974, the new real estate company appears to have actually received an amount equivalent to 1/2 of the construction cost of the access road of this case from the Korea Highway Corporation, and on February 19, 1975, transferred the management work of the access road of this case to the Plaintiff on February 19, 1975. The amount the new real estate company received from the Korea Highway Corporation is the price for transferring the access road of this case to the Plaintiff, and the transfer of the management work of the access road of this case to the Plaintiff is likely

F) At the same time, Han New Real Estate originally held the authority to collect tolls of the instant public-private partnership road pursuant to Article 12(1) of the former Toll Road Act, and at the same time held the obligation and cost of maintaining, repairing, and managing the instant public-private partnership road pursuant to Articles 12(2) and 11(3) of the same Act. It seems that the Plaintiff transferred the management of the instant public-private partnership road to the Plaintiff, and thereafter, was out of the responsibility and responsibility for the maintenance, repair, etc. of the instant public-private partnership road.

G) After transferring the management work of the access road of this case to the Plaintiff, the Plaintiff was liquidated after about 10 months elapsed since the bankruptcy procedure, and the Plaintiff did not claim ownership of each land of this case to the Plaintiff. The Defendant also concluded a contract to succeed to the remaining property from Han new real estate on November 9, 1974, and concluded a contract to succeed to the remaining property on June 10, 1997, and did not have to be deemed to have asserted that the Plaintiff asserted the ownership of each land of this case until the time when the registration of ownership transfer is completed with respect to each land of this case.

4) Nevertheless, the lower court determined that the presumption of the Plaintiff’s independent possession of each of the instant lands was broken, and rejected the Plaintiff’s assertion on the completion of the statute of limitations for the Plaintiff’s possession. In so determining, the lower court erred by misapprehending the legal doctrine on the presumption of independent possession and the reversal thereof

4. Conclusion

Therefore, the part of the lower judgment regarding the conjunctive claim is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. The appeal regarding the Plaintiff’s primary claim is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench

Justices Lee Ki-taik (Presiding Justice)