[1] Whether the presumption of transfer registration of ownership transfer also affects the former owner (affirmative)

[2] The nature of the seller's possession who is obligated to sell and deliver the real estate (=the owner's possession)

[3] Whether the occupation of possession is succeeded when the possession by inheritance is succeeded (affirmative), and the requirements for such possession to become an independent possession

[1] If the registration of ownership transfer has been made, not only the third party, but also the former owner shall be presumed to have acquired the ownership by legitimate grounds for registration.

[2] The possession of a seller who sells real estate to another person and is liable to deliver it is changed to the possession of another owner, barring special circumstances.

[3] If possessory right is acquired through inheritance, the inheritor may not claim the possessor's possession regardless of his own possession unless the inheritor commences his own possession with a new title. If the possessor's possession is the owner, the possessor's possession cannot be the owner's own possession unless there are special circumstances. For the possessor's possession to become the owner's own possession, the possessor must indicate his intention to own, or commence with the intention to own again with a new title.

[1] Article 186 of the Civil Act / [2] Articles 197 (1) and 245 (1) of the Civil Act / [3] Articles 193, 199, and 245 (1) of the Civil Act

[1] [2] Supreme Court Decision 97Da4010 Decided December 12, 1997 (Gong1998Sang, 285) / [1] Supreme Court Decision 76Da3010 decided June 7, 197 (Gong197, 1093), Supreme Court Decision 81Da791 decided June 22, 1982 (Gong1982, 6379, 26386 decided April 24, 1997 (Gong1992, 197, 1967, 1949) 92Da49796 decided May 11, 1993 (Gong1969, 197, 194, 194, 196Da29479 decided April 29, 209)

Plaintiff

Defendant (Attorney Park Im-soo et al., Counsel for defendant-appellant)

Ulsan District Court Decision 2004Na223 delivered on April 29, 2004

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

1. The judgment of the court below

The lower court: (a) on March 7, 1937, the Plaintiff: (b) on March 7, 1937, the ownership transfer registration was completed under the Nonparty’s name; (c) on April 4, 1985, the land before subdivision was divided into KRW 3,469 square meters ( Address 2 omitted) and KRW 121 square meters; (d) the Nonparty was divided into KRW 11,468 square meters and KRW 168 square meters; and (e) the Nonparty was divided into KRW 11,468 square meters and KRW 97,00,000, KRW 17,000,000, KRW 968,000, KRW 168,000; and (e) the Nonparty was divided into KRW 1,567,000 and KRW 1,983,000,000, KRW 27,000,000; and (e) the Nonparty’s farmland was divided into KRW 167,5,267,0.

2. The judgment of this Court

A. We cannot accept the judgment of the court below for the following reasons.

According to the facts and records acknowledged by the court below, the land prior to the division to which the land in this case belongs was registered under the name of the non-party on March 7, 1937, and the registration of ownership transfer was made on the ground of sale on May 25, 1961. Thus, if the registration of ownership transfer was made on May 25, 1961, the registration titleholder is not only against the third party, but also against the former owner, and the former owner is presumed to have acquired ownership by legitimate cause of registration (see Supreme Court Decisions 76Da3010, Jun. 7, 197; 81Da791, Jun. 22, 1982, etc.). Barring any special circumstance, the non-party shall be presumed to have sold all the land prior to the division to the defendant on March 25, 1961.

On the other hand, the possession of a seller who sells real estate to another person and is liable to deliver it is changed to another owner unless there are special circumstances (see, e.g., Supreme Court Decisions 92Da26468, 26475, Dec. 24, 1992; 94Da505, 50601, Jun. 28, 1996; 97Da5824, Apr. 11, 1997; 97Da40100, Dec. 12, 1997; 97Da40109, Dec. 14, 1997). In addition, where the possessor acquires possession right by inheritance, he/she cannot assert only one possession of the inheritee regardless of his/her own possession, unless he/she starts possession with a new title; 97Da5094, Sept. 25, 197, 196).

Therefore, in a case where the non-party occupied the land in this case even after the non-party sold the land before the partition to the defendant, and the plaintiff acquired it by succession after May 29, 1970, the non-party's possession was converted into the possession of the third party after the defendant completed the registration of ownership transfer in the future. Since the plaintiff's possession succeeded to the non-party's possession by inheritance should also be deemed to be the possession of the third party. Thus, unless there are special circumstances such as the plaintiff expressed his intention to own the land in this case to the defendant who is the owner, or the plaintiff started possession with the intention to own it by new title, the court below determined that the possession of the land in this case is the possession of the non-party and the plaintiff's possession of the land in this case as the owner of the land in this case by intention to own it with the intention to own it. However, the court below erred by misapprehending the legal principles as to the presumption of

B. According to the records, the Plaintiff sold only the remaining part of the land before the division to the Defendant. The part of the land before the division was divided at the time of completing the registration of ownership transfer following the sale in the Defendant’s future, and thus, the registration of ownership transfer was completed in the name of the Defendant as to the whole land before the division. However, if the land is divided later, the Nonparty and his heir are occupying and cultivating the land under an agreement that the Plaintiff would receive the registration of ownership transfer under the agreement that the Plaintiff would have completed the registration of ownership transfer. Thus, the Plaintiff’s possession on the part of the Plaintiff is an autonomous possession. Thus, the lower court should have deliberated and determined whether the land in this case was excluded from the sale subject to the Plaintiff’s burden of proof,

3. Conclusion

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Han-gu (Presiding Justice)