Plaintiff (Dongdong Law Firm, Attorneys Choi Choi Jae-se et al., Counsel for the plaintiff-appellant)

Republic of Korea (Law Firm Peak, Attorneys Final Won-won et al., Counsel for the defendant-appellant)

November 10, 201

Changwon District Court Decision 2009Kadan49479 Decided October 12, 2010

1. Revocation of a judgment of the first instance;

2. On January 2, 2005, the Defendant shall implement the registration procedure for ownership transfer on the ground of completion of the prescriptive acquisition on January 2, 2005 with respect to the Plaintiff’s share of 1/2 of the real estate listed in

3. All costs of the lawsuit shall be borne by the defendant.

The same shall apply to the order.

1. Basic facts

A. On January 14, 1928, the real estate listed in the separate sheet No. 1 (hereinafter “instant land”) was jointly owned by Nonparty 1 and Japan, respectively.

B. Nonparty 2, on May 26, 1981, pursuant to the former Act on Special Measures for the Transfer of Real Estate Ownership (Act No. 3094), registered the transfer of co-ownership on the part of Nonparty 1 among the instant land on March 10, 1957.

C. Around June 4, 1997, Non-party 2 died, and the Plaintiff completed the registration of ownership transfer on August 2, 1997 with respect to the share of 1/2 shares of the land of this case on the grounds of inheritance following a consultation division.

D. Meanwhile, Nonparty 2, while living at the beginning of the instant land on the ground, newly constructed a building listed in attached Table 2 (hereinafter “instant building”) and completed registration of preservation of ownership on February 7, 1980.

【Ground for Recognition: Facts without dispute, entries in Gap evidence 1 through 4 (including branch numbers, if any) and the purport of the whole pleadings

2. Determination as to the cause of action

In full view of the overall purport of pleadings as to Non-Party 4, 5, 6, 7, and Non-Party 3’s testimony from Non-Party 1 witness of the first instance trial, Non-Party 2 may recognize the fact that Non-Party 2 has occupied the instant land by succeeding to the possession of Non-Party 2’s above building on the ground of inheritance and continuing to reside in the above building, and has occupied the instant land up to the present time. Non-Party 2 or the Plaintiff is presumed to have occupied real estate in a public performance with the intention of ownership under Article 197(1) of the Civil Act, and thus, it is presumed that the non-party 9 or the non-party 2 or the non-party 3 acquired the instant real estate on the ground of non-party 9’s intention to acquire the ownership of 1/2 of the instant land at least 90 years retroactively from the expiration of the period of acquisition by prescription on the ground of non-party 2’s non-party 9’s acquisition by prescription.

3. Judgment on the defendant's assertion

A. The assertion

Of the instant land, 1/2 shares constitute the Defendant’s property reverted to the Japanese owner prior to the Sea bank. Nonparty 2, while Nonparty 2, while Nonparty 1/2 shares of the said land to a private person, occupied it without any title, such as sale, knowing well that it is the property devolving upon the private person without any disposal authority, the possession by Nonparty 2 constitutes the possession by a third party. The Plaintiff’s possession by Nonparty 2 on the ground of inheritance constitutes the possession by a third party. The Plaintiff’s possession by Nonparty 2 cannot be the basis of the prescription for acquisition

B. Determination

(1) According to Article 197(1) of the Civil Act, the possessor of an object is presumed to have occupied the object as his/her own intent. As such, the possessor is not liable to prove his/her own intention when he/she claims the prescriptive acquisition, and bears the burden of proof to a person who denies the establishment of the prescriptive acquisition by asserting that the possessor has no intention to own it. Moreover, whether the possessor is an autonomous possession or an in-house possession with no intention to own it is not determined by the possessor’s internal intent, but rather by external and objective means depending on the nature of the title that caused the acquisition of possession or all circumstances related to the possession (see, e.g., Supreme Court Decision 201Da15094, Jul. 28, 2011). The presumption of autonomous possession cannot be reversed or it cannot be deemed as an occupancy solely on the ground that the possessor’s own claim for title to possession, such as the purchase and sale, is not recognized (see, e.g., Supreme Court Decision 94Da495379, Mar. 39, 1995).

With respect to this case, the testimony of Nonparty 4, 5, 6, 7, and Nonparty 3 of the first instance trial witness is insufficient to recognize that Nonparty 1 acquired the ownership of Nonparty 1/2 shares in the name of the enemy 1/2 out of the land of this case, and Nonparty 2 purchased all of the land of this case including the shares in the name of the enemy 1, and there is no other evidence to support this. However, in light of the aforementioned legal principles, it cannot be readily concluded that Nonparty 2 or the Plaintiff’s possession is reversed in light of the above legal principles.

(2) Meanwhile, Article 2 subparag. 1 of the former Act on Special Measures for the Disposal of Property Belonging to the State (Act No. 1346, May 29, 1963) and Article 5 of the Addenda provides that property devolving upon the State shall be State-owned free of charge until the end of December 1964. Thus, property devolving upon the State shall be presumed to have been possessed as State-owned property from January 1, 1965 and Article 197(1) of the Civil Act shall be presumed to have been possessed by the intention of possession pursuant to Article 97 subparag. 19 of the Civil Act, even if the owner knowingly acquired real property or acquired it by a juristic act becomes null and void, it shall be deemed that the owner is still a person who knowingly occupies the real owner of such real property and knowingly occupies it as his own property, and thus, it shall not be deemed to have been occupied at the time of the commencement of possession. Article 97 subparag. 2 of the Civil Act, which provides for the presumption of possession of property devolving to the Government. 94.

The Plaintiff’s share in the land of this case was registered in the name of 1/2 as seen earlier. According to the Plaintiff’s evidence No. 1-1 and evidence No. 2 and the testimony of Nonparty 3 as witness of the first instance trial, the Plaintiff was living in the forest gire (land number No. 2 omitted) where there are many lots of land registered in the name of gire-si with Nonparty 1 as the land of this case, and the land of this case was owned in the name of gire-si and gire-si, which were owned by Nonparty 1 and gire-si, which were located in the village where the Plaintiff resided. However, in light of the fact that Nonparty 1 and gire-si were located in the land of this case, it appears that it was difficult for Nonparty 2 to recognize that the entire land of this case was occupied in the name of gire-si and gire-si, which were owned by Nonparty 1 and the entire land of this case.

4. Conclusion

If so, the plaintiff's claim of this case is justified, and the judgment of the court of first instance is unfair with different conclusions, so the court of first instance revokes the plaintiff's appeal and ordered the defendant to implement the above registration procedure, and it is so decided as per Disposition.

[Attachment]

Judges Yellow-Woo (Presiding Judge)