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대법원 2018.03.27 2015다3914
토지인도 등

Defendant (Counterclaim Plaintiff) of the lower judgment on the claim for payment of money among the main claim against DP, Q, DDR, DS, and DT.


1. We examine the grounds of appeal by the Plaintiff (Counterclaim Defendant, hereinafter “Plaintiff”).

The following facts are revealed according to the reasoning of the lower judgment and the record. (A) misunderstanding of the legal doctrine regarding the establishment of implied loan agreement (ground of appeal No. 1) (1) and the Defendant (Counterclaim Plaintiff; hereinafter “Defendant”) (hereinafter “Defendant”), Qu, DR, DS, and DT portion (A).

① On September 9, 2015, during the trial period, Defendant DP, Q, DR, DS, and DT taken over the lawsuit; hereinafter “Defendant DP”) and their father, the Plaintiff’s father, shall be as shown in the Annexed judgment of the lower court in the Asan City B, which is owned by the Plaintiff.

1. Attached Form of the judgment of the court below in four parcels of land listed in paragraphs (1) through (4) of the list (hereinafter “BT land”) and the judgment of the court below in Seoan-gu, Seoan-gu, Seoan-si

1. The six lots of land listed in paragraphs 6 and 11 of the list (hereinafter “AL land”) have been occupied for a period of several hundred and forty years. D among them began to occupy from January 23, 194.

② On October 15, 1978, the Plaintiff’s land located in Asan-gun Dunwon to Asan-gun on October 15, 1978, is attached to the lower judgment.

1. The land appears to be listed in paragraph (1) of the list;

B agreed to receive 1 Gaman each year and leased 1 Gaman.

③ The Plaintiff had D use 1/2 of the AA 13,061 square meters of a 13,061 square meters for the management and preparation of a grave.

D and B occupied BT land and AL land for a period of several hundred and twenty years, and changed its land category through clearing and obtained profits, but the Plaintiff did not raise an objection or demand payment.

④ On March 28, 1986, AD, the representative of the Plaintiff, sent letters to the members of the lower court, which considered D’s property management as a matter of D’s management, and requested D to pay reasonable usage fees, not for the return of the land to be used.

D, even though D and its children promised to return the Plaintiff’s property, they did not demand or prohibit D, etc. from claiming or using the said land.

5. D The Plaintiff’s grave is weak.