[1] In a case where a building constructed on one's own land intrudes on another's adjacent land, the standard for determining whether the possession of adjacent land due to the crime is frequently occupied

[2] The case holding that in case where a factory building was built on the land as a result of the delivery of the land scheduled for substitution was invaded by the adjacent land, the location and shape of the affected adjacent land are adjacent to the change of the land scheduled for substitution, and the area of the affected land was merely 7% of the land determined for substitution, and thus, it cannot be seen that the affected area exceeded the ordinary degree of error in construction, and thus, it was unaware of the circumstances that affected the adjacent land at the time of the commencement of possession

[3] In a case where a person, who was aware of another person's land adjacent to his own land as a part of his own land and began to possess it later, becomes aware that the said land is not owned by him, whether the nature of the possession is converted into the possession by the owner (negative)

[1] In the purchase and acquisition of land, if the purchaser occupies a part of the adjoining land by mistake because the purchaser correctly confirms the boundary line of the adjoining land and believed that it belongs to the land he/she purchased or acquired, possession of part of the adjoining land is based on the owner's intent. Thus, even if a mistake caused a part of the adjoining land due to an error in the construction of a building on his/her own site, it cannot be determined that the occupancy of the adjoining land is not based on the owner's intention to own as long as it is due to an error. However, in general, a person who intends to construct a new building on his/her own site is ordinarily going back to the construction after confirming in advance the location and area of the part of the adjoining land by drawing, etc., so if the area of the building exceeds the ordinary degree of error in construction, it is reasonable to view that the owner of the building in question was aware that the building was at the time of the construction of the adjoining land, and therefore, the owner of the building in question has no intention to possess the adjoining land.

[2] The case holding that in the case where a factory building was built on the land as a result of the delivery of the land scheduled for substitution and the adjacent land was invaded, the location and shape of the affected neighboring land are adjacent to the change of the land scheduled for substitution, and the area of the affected land was merely 7% of the land determined for substitution, and thus, it cannot be seen that the affected area exceeded the ordinary degree of error in construction, and thus, it was not known that the surrounding land was invaded at the time of the commencement of possession

[3] A person who occupies another person's land adjacent to his own land at the beginning of his possession with knowledge of the land owned by him as a part of the land owned by him, shall not be converted into the possession of another person solely on such circumstance, even if he subsequently becomes aware that such land is not the land owned by him.

[1] Articles 197(1) and 245(1) of the Civil Act / [2] Articles 197(1) and 245(1) of the Civil Act / [3] Articles 197(1) and 245(1) of the Civil Act

[1] Supreme Court Decision 91Da2851, 2868, 92Da2844 delivered on May 26, 1992 (Gong1992, 2012), Supreme Court Decision 96Da41335 delivered on January 24, 197 (Gong1997Sang, 644), Supreme Court Decision 98Da32878 delivered on November 10, 1998 (Gong1998Ha, 2843), Supreme Court Decision 200Da42977, 42984, 4294, 264 decided on December 8, 200 (Gong201Sang, 201Sang, 2089) / [3] Supreme Court Decision 88Da79894989 delivered on May 23, 198, 197; 97Da98497989, Jul. 29, 1985)

Dong Yang-dong Corporation (Attorney Lee Dong-won, Counsel for the defendant-appellant)

[Judgment of the court below]

Seoul High Court Decision 99Na12378 delivered on December 13, 2000

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

The grounds of appeal are examined.

1. Points of mistake of facts

Examining the relevant evidence in light of the records, the plaintiff purchased five parcels of land in the decision of Dongdaemun-gu Seoul ( Address omitted) No. 244, which was the land before replotting from the non-party manufacturing publicity company on December 22, 1955, and completed the registration of ownership transfer on February 27, 1956. Meanwhile, the plaintiff transferred 2,312.43 parcels of land reserved for replotting which was designated as the above five parcels of land in accordance with the plan for the land readjustment and rearrangement project of private land which was authorized as of January 12, 1940 and constructed a factory building on the above five parcels of land as of March 20, 1957, and installed fences and gates on the outer border part of the non-party manufacturing publicity company, the adjacent land secured by the defendant as of March 20, 1957, and used the wall and gate on the outer border part of the land of this case No. 225. 602.5 square meters of the land of this case as the ground for appeal.

2. As to the misapprehension of legal principles as to autonomous possession

A. In the purchase and acquisition of land, if the purchaser believed that part of the adjoining land belongs to the land that he/she purchased or acquired as a result of an incorrect verification of the boundary line with the adjoining land and it is occupied by mistake, the possession of part of the adjoining land is based on the owner’s intent (see, e.g., Supreme Court Decisions 91Da2851, 2851, 2868, 92Da2844, May 26, 1992; 98Da32878, Nov. 10, 1998). Thus, it is reasonable to view that the owner of the adjoining land was not aware of the owner’s intention to occupy and occupy the adjoining land beyond 90 square meters in light of the nature of the building site and the size of the adjoining land (see, e.g., Supreme Court Decision 200Da97480, Apr. 2, 1998).

B. However, according to the records, the Plaintiff’s survey was conducted in constructing a factory building on or around March 20, 1957 after delivery of 2,312.43 square meters of land scheduled for replotting. However, among the Plaintiff’s neighboring land No. 1, 225.6 square meters and the shape of 202.5 square meters of the instant land, which is the Plaintiff’s adjacent land, are adjacent to the change of land scheduled for replotting, and the land size (528.1 square meters) is 7% of the land owned by the Plaintiff, the area of which (528.1 square meters) is determined to have been 7,621 square meters and so it cannot be deemed that it goes beyond the degree of error in construction, and it is difficult to view that the Plaintiff did not own the said land as part of 97.6 square meters and 2302.5 square meters of the instant land (see, e.g., Supreme Court Decision 97Da1987, supra., that it did not constitute one’s neighboring land owned.

Although the judgment of the court below is somewhat insufficient, the judgment of the court below that recognized the plaintiff's independent possession is just, and there are no errors in the misapprehension of legal principles as to the intention of ownership or in the misapprehension of legal principles, which affected the conclusion of the judgment.

3. Therefore, the appeal shall be dismissed, and all costs of appeal shall be assessed against the losing defendant. It is so decided as per Disposition by the assent of all Justices who reviewed the appeal.

Justices Lee Yong-woo (Presiding Justice)