In a case where a possessor of real estate fails to meet the requirements prescribed by the Act on Special Measures for the Registration, etc. of Ownership Transfer of Real Estate and thus becomes null and void, whether the presumption of possession possession is reversed (negative)

Article 197(1) of the Civil Act; Articles 7 and 10 of the former Act on Special Measures for the Registration, etc. of Ownership of Real Estate (Amended by Act No. 3159, Dec. 6, 1978)

Plaintiff

Defendant

Supreme Court Decision 2011Da36800 Decided July 28, 2011

Suwon District Court Decision 2011Na26671 decided December 7, 2011

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

The grounds of appeal are examined.

The presumption of possession with autonomy under Article 197(1) of the Civil Act is not clear merely because the assertion about the possessor’s source of right is not recognized. Thus, even if a possessor of real estate registers the ownership transfer under the former Act on Special Measures for the Registration, etc. of Ownership of Real Estate (Act No. 3094) but such registration is null and void because it does not meet the requirements prescribed in the above Act, the presumption of possession with autonomy cannot be deemed to constitute a case where the presumption of possession with the knowledge that the registration is null and void, such as

The court below rejected the plaintiff's assertion that the possession of the land of this case and the defendant's possession of the land of this case is presumed to have been openly and openly continued with the intention of possession, on the basis of the facts acknowledged as stated in its holding, since the defendant's assertion as to the possessory right of each of the land of this case is not acknowledged, it cannot be readily concluded that the possession of the possessory right of this case is possession of the possessory right of this case as a matter of course, and the evidence of the plaintiff's submission alone alone is insufficient to recognize that the possession of the land of this case was commenced with the knowledge of this fact without any legal act or other legal requirements which can cause the acquisition of ownership

Examining the reasoning of the lower judgment in light of the relevant legal principles and records as seen earlier, the lower court’s aforementioned determination and fact-finding that led to such determination are all justified. In so doing, it did not err by failing to exhaust all necessary deliberations or by misapprehending the legal principles on the possession of independent possession or possession, as otherwise alleged in the grounds of appeal.

Therefore, the appeal is dismissed by the assent of all participating Justices, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition.

Justices Ahn Dai-hee (Presiding Justice)