Whether the present possessor’s possession is presumed to be an independent possession, even if the former possessor’s possession is an independent possession, in cases where the possessor’s successor asserts only his own possession (affirmative)

Articles 197(1), 199, and 245 of the Civil Act

[Plaintiff-Appellant-Appellee] Plaintiff 1 and 1 other (Law Firm Han, Attorneys Lee Jong-soo et al., Counsel for plaintiff-appellant-appellee-appellant-appellee-appellant-appellee-appellant-appellee-appellant-appellee-appellant-Appellee

Plaintiff (Attorney Kim Young-jin et al., Counsel for the plaintiff-appellant)

Defendant (Law Firm Rate, Attorneys Park Young-young et al., Counsel for the defendant-appellant)

Seoul Western District Court Decision 2006Na818 Decided November 16, 2006

The appeal is dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal are examined.

1. As to the second ground for appeal

This part of the ground of appeal is just a dispute over the fact-finding of the court below that the plaintiff continued to cultivate crops for not less than 20 years from (a) and (b) (hereinafter referred to as "the land portion in this case"), which are a part of the land of 1, 7, 7, 5, 1, 7, 7, 1, 7, 1, 7, 1, 7, 1, 1, 200, in Suwon-si, which is a part of the land of this case, and it cannot be viewed as a legitimate ground of appeal. In addition, even

2. Regarding ground of appeal No. 1

According to Article 197(1) of the Civil Act, the possessor of an article is presumed to possess it with the intention of possession. As such, if the possessor claims the acquisition by prescription, he/she is not responsible to prove the intention of possession by himself/herself, and there is the burden of proof against the person who denies the establishment of the acquisition by prescription by asserting that the possessor is an possession without the intention of possession. Whether the possessor is an independent possession or an non-owned occupancy is determined by the intention of the possessor, not by the internal deliberation of the possessor, but by the external and objective determination of the nature of the title that caused the acquisition by possession or all the circumstances related to the possession. As such, the fact that the possessor acquired possession on the basis of the title that the possessor appears to have no intention of possession by its nature is proved, or that the possessor has an intention of exclusive control as his/her own property by excluding the ownership of another person, i.e., where the possessor does not express his/her intention of possession by the genuine owner or if he/she does not act with an intention of possession, it cannot be presumed that the possessor is independent possession by his/herself.

After recognizing the facts in its reasoning based on the evidence of its employment, the court below determined that the plaintiff's possession of the land in this case is presumed to be possession with the intention of possession under Article 197 (1) of the Civil Act, i.e., possession with the intention of possession with the intention of possession with the intention of possession with the intention of possession with the intention of possession with the intention of possession with the intention of possession with the intention of possession with the opinion of the plaintiff, and the circumstances in its reasoning alone are insufficient to say that the presumption of the plaintiff's autonomous possession with respect to the land in this case was broken, and there is no other evidence to prove that the presumption of the plaintiff's autonomous possession was broken. In light of the above legal principles and records, the court below's findings

3. As to the third ground for appeal

In light of the records, the "former Elucidation" alleged in the ground of appeal in this part is merely a circumstance that does not directly relate to the cause of the claim in this case, and is merely a circumstance to conceal the credibility of the plaintiff's assertion, or matters that have the burden of proof to the defendant, and thus, the court below cannot be deemed unlawful on the ground that the court below actively exercised the right of explanation on the ground that the plaintiff did not exercise the right of explanation on the ground that the court below was unlawful. In addition, since the court below did not take measures, such as the imposition of administrative fines, as the witness who was not present at the date and was dismissed on the date

4. As to the fourth ground for appeal

Examining the reasoning of the judgment below in light of the records, the court below determined that the facts that the plaintiff did not request the defendant to complete the registration of ownership transfer concerning the land portion of this case are acknowledged, but such facts alone are insufficient to say that the plaintiff's presumption of autonomous possession was broken, and no other evidence exists to find that the plaintiff acquired possession on the basis of title that the plaintiff did not have an intention to own, or that the plaintiff did not have an intention to reject and occupy another person's ownership as above. Within the judgment of the court below, the judgment of the court below contains all the judgment of the defendant's assertion that the presumption of autonomous possession was broken in considering the circumstances where the plaintiff did not explicitly state his/her intent to hold the right, such as not seeking registration in accordance with various special measures for the land portion of this case. In addition, in light of the purport of Article 208 (2) of the Civil Procedure Act, which provides that the court below did not explain the grounds for appeal by the parties within the extent that it can be recognized that the main sentence is justifiable, and it did not err in the misapprehension of the grounds for appeal under the Civil Procedure Act.

5. Ground of appeal No. 5

Examining the judgment below in light of the records, it can be known that the original copy of the judgment is accompanied by both the annexed drawing, the survey result map, and the appraisal standard, and the explanation in comparison with the indicated parts in the annexed drawing was stated in the column of purport of the judgment, and it does not seem that it does not constitute a case where the reasons for the judgment are not clarified or contradictory. Therefore, the judgment of the court below does not contain an error of law such as lack of reason or inconsistent reasoning, as alleged in the ground of appeal.

6. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing defendant. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yang Sung-tae (Presiding Justice)