2014Da35990 Requests, etc. for cancellation of ownership transfer registration.

Class A:

B

Suwon District Court Decision 2013Na44369 Decided April 11, 2014

February 18, 2016

The part of the judgment of the court below against the plaintiff is reversed, and that part of the case is remanded to the Suwon District Court Panel Division.

The grounds of appeal are examined.

1. According to the reasoning of the judgment below, the court below determined that the Defendant acquired the instant land by prescription by occupying the instant land with intent to own it for ten years from the date of completing the registration of ownership transfer as to C forest land 1,331 square meters (hereinafter “the instant land”) in Sungsung-si on March 30, 201, and without negligence, on the grounds as stated in its reasoning.

2. Examining the relevant legal principles and records, the lower court was justifiable to have determined that the Defendant occupied the instant land, and did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on possession.

3. However, it is difficult to accept the lower court’s determination that the Defendant occupied the instant land without negligence for the following reasons.

A. The burden of proving the negligence, which is the requirement for the acquisition by prescription of the registry of real estate, lies in a person who asserts the acquisition by prescription, and the purchaser of real estate shall investigate whether the seller has the authority to dispose of the real estate, barring any special circumstances, and if the purchaser purchased the real estate without such investigation even though he/she could have known that the seller had no right to dispose of the real estate if he/she had conducted such investigation, he/she was negligent in the possession of the real estate (see, e.g., Supreme Court Decisions 2004Da13052, Jun. 25, 2004; 90Da13178, Feb. 12, 200).

B. The following circumstances revealed by the reasoning of the judgment below and the records: ① At the time of the conclusion of the exchange contract in this case, H was the representative of the plaintiff at the time of May 7, 200, which is the date of the conclusion of the exchange contract in this case, but the owner on the register of the land in this case was the plaintiff; ② Nevertheless, H and the defendant did not have the status of the plaintiff's representative, and signed and sealed H's seal on the land in this case; ③ at the time of the conclusion of the exchange contract in this case, H did not have the resolution of the board of directors regarding the land in this case; ③ the H did not have the authority to investigate the land in this case by the resolution of the board of directors on March 18, 201. The above resolution of the board of directors did not contain the authority to request the defendant to transfer the land in this case to H to the extent that it did not have the authority to investigate the land in this case, and the defendant did not have the same authority to request the plaintiff to transfer the land in this case, and did not have any duty to establish the forest land in this case.

Nevertheless, the court below determined that there was no negligence on the part of the defendant in possession of the land of this case, and it exceeded the bounds of the principle of free evaluation of evidence against logical and empirical rules, or erred by misapprehending the legal principles on negligence in the prescription for acquisition of registration.

4. Therefore, without further proceeding to decide on the remaining grounds of appeal, the part against the Plaintiff among the judgment below is reversed, and that part of the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Supreme Court Decision 200

Justices Lee In-bok

Justices Kim Gin-young

Chief Justice Lee Dong-won