(a) The burden of proving the possession with respect to the prescriptive acquisition;

B. Whether the presumption of possession with autonomy can be reversed solely on the ground that the possessor’s title to the possession alleged by him/her is not recognized (negative)

A. The intention of possession, which is the requirement for acquisition by prescription, shall be based on the nature of possessory right, and if the nature of possession is unclear, it shall be presumed that possessor has possession with his intention pursuant to Article 197(1) of the Civil Act. Therefore, the possessor is not actively responsible for proving that he is possession with intention of possession, and it shall be proven to the other party who asserts that the possessor is the possession with intention of possession with intention of possession.

B. The presumption of possession with autonomy is reversed solely on the ground that the possessor’s assertion of possessor’s source of possessor’s right is not recognized as the source of possessor’s right, but is not an owner of possession.

(b)Articles 197 and 245 of the Civil Code;

Supreme Court en banc Decision 82Da708, 709Da1792, 1793 Decided July 12, 1983, Decision 83Da615 Decided September 31, 1984

Plaintiff 1 and 12 Plaintiffs’ attorneys expected to do so.

Attorney Lee Jae-ho, Counsel for the defendant-appellant of Incheon Metropolitan City

Seoul High Court Decision 85Na2991 delivered on June 25, 1986

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

As to the Defendant’s Attorney’s ground of appeal:

According to the reasoning of the judgment of the court below, the court below rejected the defendant's claim for the possession of the land of this case as long as the defendant is found to possess the land of this case as an organization of the persons who were engaged in funeral in the building constructed on the land of this case, even though it is recognized that the defendant had occupied the land of this case after December 31, 1959, by expanding the existing road between the Dong-dong and the Dong-dong in Incheon to a width of 20 meters, and the Do-dong had a signature and seal of the members of the Do-dong association around June 1958.

Since the possessor is presumed to have occupied in good faith, peace, and public performance pursuant to Article 197(1) of the Civil Act when the nature of possession is not clear, the possessor, who is the content of possession that is the requisite for the acquisition by prescription, should be determined by the nature of the possessor’s possession right, but is presumed to have been occupied in good faith, peace, and public performance, the possessor is not obligated to actively prove that the possessor is possession, but is responsible to prove it to the other party who asserts that the possessor is the possessor is the owner of the possession. This legal principle cannot be deemed to have reconsumed the presumption of possession with the sole reason that the possessor is not recognized as the owner of the possession right, even if the possessor asserts the source of possession right, such as the purchase donation, but is not recognized by himself. This is the opinion expressed by the member (see, e.g., Supreme Court Decision 82Da708, 709, 82Meu1792,1793, Jul. 12, 1983).

In this case, if it is recognized that the Defendant occupied the instant land during the period as determined by the lower court, the Defendant is presumed to have occupied the instant land in a peaceful manner with the intention of possession, and the Defendant is not liable to prove the fact constituting the cause of possession of the said land in order to prove that it is an independent possession, and it is not recognized that the source of possession right is the owner of the said land without the burden

The judgment of the court below is erroneous in the misapprehension of the legal principles as to the burden of proof for the possession with the intention of acquisition by prescription, which affected the conclusion of the judgment.

Therefore, the judgment of the court below is reversed, and 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 judges.

Justices O Sung-sung (Presiding Justice)