Method of recognizing intention to own as the requirement for acquisition by prescription

The intention of possession, which is the content of the possession with intention to own, may be recognized only when it is determined by the nature of the title of the possession, or when the possessor expresses his intention to own to the owner. Therefore, it is not determined that possession with intention to own merely is presumed, but it is necessary to examine and determine what title the possession has commenced.

Article 245 of the Civil Act

[Judgment of the court below]

Defendant 1 and two others, Counsel for the defendant-appellant and one other, Counsel for the defendant-appellant-appellee)

Cheongju District Court Decision 73Na76 delivered on May 7, 1974

The original judgment shall be reversed, and the case shall be remanded to Cheongju District Court Panel Division.

The grounds of appeal by the plaintiff's attorney are examined comprehensively.

According to the reasoning of the judgment of the court below, according to the whole purport of evidence Nos. 5-1 and 2 of the court below and witness testimony and pleading of the non-party 1, non-party 2, non-party 3, non-party 4, and non-party 5, Defendant 1 recognized that the above non-party 6 died on Oct. 10, 1945, possession of the forest of this case from that time and possession of that person was presumed to have occupied the forest of this case and that the possession of that person made a peaceful performance with his own will.

However, the intention of possession, which is the requirement for prescriptive acquisition, can be recognized only when it is determined by the nature of the title of possession, or when the possessor has expressed his intention to hold it against the owner. According to the judgment of the court below, after the deceased on October 10, 1945, the forest of this case was inherited by Nonparty 7, his wife, and after the deceased on May 8, 1969, he jointly succeeded to the same three women, and Defendant 1 recognized that there was no inheritance as well as donation. Accordingly, the court below determined that Defendant 1 commenced possession of farmland under any title since the above non-party 6 died, without examining and determining this, and that it is presumed that the farmland of this case was occupied by the defendant and it was occupied by the intention of possession as the owner of the forest of this case. The court below did not err in the misapprehension of the judgment of the court below as to the remaining grounds for appeal.

Therefore, by the assent of all participating judges, the original judgment is reversed, and the case is remanded to the Cheongju District Court. It is so decided as per Disposition.

Justices Ahn Byung-soo (Presiding Justice)