(a) the burden of proving the possession with respect to the acquisition by prescription;

B. In a case where the possessor denies the title of the possession as alleged by the possessor, whether the presumption of the possession with independence can be deemed to be reversed or as the possession with intention to own (negative)

A. In the case of acquisition by prescription, the intention of possession, which is the requirement for possession with intention of possession, should be determined depending on the nature of the source of possessory right which is the cause of acquisition by possession, or even if the nature of the source of possessory right is not clear, the possessor is presumed to have possession with intention of possession pursuant to Article 197(1) of the Civil Act. Therefore, the possessor is not actively responsible for proving that the possession is possession with intention of possession by intention of possession,

B. Even if the possessor asserted the source of possessory right such as sale and purchase, gift, etc., but this is not recognized, it cannot be said that the presumption of possession with autonomy cannot be reversed or that the possessor is in possession with the nature of the source of possessory right.

Articles 197 and 245 of the Civil Act

Supreme Court Decision 82Meu1792, 1793, 82Da708, 709 Decided July 12, 1983

[Judgment of the court below]

Defendant 1 and 3 others, Defendant 1 et al., Counsel for the defendant-appellant and the defendant-appellant

Daegu High Court Decision 81Na1368 delivered on June 22, 1983

The judgment below is reversed and the case is remanded to the Daegu High Court.

We examine the grounds of appeal.

1. As to ground of appeal No. 1

Examining the evidence of the court below based on the records of the case, the court below rejected the defendant's assertion that the non-party 1, the decedent of the defendant 1, purchased from the deceased non-party 2, the deceased non-party 2, the deceased non-party 1, the deceased non-party 1, the deceased non-party 2, the deceased non-party 1 purchased the land ( Address 1 omitted) through 6.10 from the deceased non-party 2, and caused the remaining defendants to finally purchase the land of this case, and the non-party 3, the first seller, also purchased the land of this case from the deceased non-party 2, the ( Address 2 omitted), ( Address 3 omitted), ( Address 4 omitted), ( Address 5 omitted), and ( Address 6 omitted) without completing the registration of transfer of ownership, and the registration of transfer of ownership in this case was valid in accordance with the agreement of the defendant et al., and therefore, it cannot be justified in the misapprehension of legal principles as to the principle of free evaluation of evidence.

2. As to the grounds of appeal Nos. 2 and 6

According to the reasoning of the judgment below, the court below rejected the claim that Defendant 2 and Defendant 4 (Dong-dong Defendant 2 purchased the same location ( Address 6 omitted) of the same area as that of Defendant 2 and Defendant 4, which was divided into approximately 72, 72, Gyeong-gun ( Address 2 omitted), and that Defendant 2’s registration of transfer of ownership in the name of Dong-dong at the court below is included in the premise of the claim that the transfer of ownership in the name of Dong-dong is consistent with the substantive legal relationship.) and that Defendant 3’s assertion as to the acquisition of prescription, there is no evidence to acknowledge that the possession was possession and the peace performance by expressing the owner’s intention or not by nature of the title.

However, in the case of acquisition by prescription, the intention of possession, which is the requirement for possession with intention of possession, should be determined depending on the nature of the source of possession right which is the cause of acquisition by possession, or even if the nature of the source of possession right is not clear, it is presumed that the possessor has possession with intention of possession by Article 197(1) of the Civil Act. Thus, since the possessor is not actively responsible for proving that the possessor is possession with intention of possession, and the other party who contests the source of possession right has the burden of proving the source of possession with intention of possession with the burden of proving the source of possession with intention of possession, even if the possessor asserted the source of possession right, such as a donation for sale and purchase, but is not recognized as such, it cannot be said that the presumption of possession with such reason alone is reversed or that the possessor is an owner with the nature of the source of possession right (see Supreme Court Decision 82Da708, 709, 8

Therefore, in this case where the defendant et al. knew that he occupied the land of this case for about 40 years, even though the defendant et al. did not prove that he had asserted that he possessed the land of this case, the title of such possession cannot be deemed to be an independent possession, and it cannot be deemed that the defendant et al. is responsible for proving that he was an independent possession. Thus, at the time of the original adjudication, the plaintiff et al. erred by misapprehending the legal principles on prescriptive acquisition, etc. and violated the precedents of the party members, and thus, there is a reason to discuss the theory of lawsuit

3. As to the fourth ground for appeal:

According to the records, Defendant 1’s legal representative asserted the purchase of the land of this case in the preparatory document dated March 4, 1981 stated on March 1, 1981 as of the date of pleading of this case, and further, he occupied the land of this case, and the court below erred in the misapprehension of the legal principle as to Defendant 1’s legal representative’s right to acquire the land of this case as of February 1, 1935, on the ground that Defendant 1’s legal representative purchased from Defendant 2 as of February 1, 1935, No. 72, No. 62 ( Address 1 omitted) and No. 3 (No. 7 omitted) and No. 8 (No. 9 omitted) and there were no errors in the misapprehension of the legal principle as to Defendant 1’s legal representative’s right to acquire the land of this case as of the date of pleading of this case, and the court below should have determined that the land of this case was owned by Defendant 1’s legal representative by the aforementioned consultation with the above Defendant 196’s legal representative.

4. Ultimately, without any need to decide on the remaining grounds of appeal, the lower court did not dismiss the case on the grounds of appeal Nos. 2, 4, and 6, and thus, reversed the case and remanded to the Daegu High Court. It is so decided as per Disposition by the assent of all participating judges.

Justices Lee Il-young (Presiding Justice)