[1] Whether the presumption of possession with autonomy is reversed solely on the ground that the State or a local government fails to submit documents on the procedure for acquiring land, claiming the completion of prescriptive acquisition (negative)

[2] Whether an owner of unregistered land who is obligated to implement the procedure for ownership transfer registration on the ground of the completion of prescription has a legal interest in seeking confirmation of ownership of the land against the State (negative)

[1] Articles 197(1) and 245(1) of the Civil Act / [2] Article 245(1) of the Civil Act, Article 250 of the Civil Procedure Act

[1] Supreme Court Decision 2005Da33541 Decided December 9, 2005 (Gong2006Sang, 114), Supreme Court Decision 2005Da36045 Decided January 26, 2006, Supreme Court Decision 2007Da42112 Decided December 27, 2007 (Gong2008Sang, 133) / [2] Supreme Court Decision 94Da13480 Decided June 9, 1995 (Gong195Ha, 2368)

Plaintiff 1 and five others (Attorney Tae Tae-soo et al., Counsel for the plaintiff-appellant)

Korea

Seoul High Court Decision 2007Na47164 decided January 15, 2008

The part of the judgment of the court below concerning the claim for confirmation of ownership of the land No. 2 is reversed, and the same part of the judgment of the court of first instance is revoked, and this part of the lawsuit is dismissed. The remaining appeals by the plaintiffs are dismissed

The grounds of appeal are examined.

1. On the first ground for appeal

The admission of evidence and fact-finding belong to the full power of the fact-finding court, and this is not a legitimate ground for appeal unless it goes beyond the bounds of the principle of free evaluation of evidence (see Supreme Court Decisions 2001Da33048, Aug. 24, 2001; 2005Da77848, May 25, 2006, etc.).

In light of the above legal principles and records, the court below recognized the facts as stated in its decision after compiling the adopted evidence, and recognized that the defendant had commenced possession of the land No. 1 and land No. 2 from August 31, 1971 when the route designation of the National Highway No. 42 was at least when the defendant had been designated as the route of the National Highway No. 42.

2. On the second ground for appeal

If the nature of the source of possessory right of real estate is not clear, the possessor is presumed to have occupied the land in good faith, peace, and public performance by the intention of ownership under Article 197(1) of the Civil Act, and such presumption applies likewise to cases where the State or a local government occupies the real estate, which is a managing body of the cadastral record, with the knowledge of the absence of such legal requirements, such as a juristic act which may cause the acquisition of ownership at the time of the commencement of possession. In addition, barring any special circumstance, the possessor shall be deemed to have rejected another’s ownership and has no intention to occupy it. Thus, the presumption of possession with the intention to own shall be deemed to have been broken (see, e.g., Supreme Court en banc Decision 95Da28625, Aug. 21, 1997). Meanwhile, even if the State or a local government fails to submit documents concerning the procedure for the acquisition of land for acquisition of the prescriptive acquisition, it cannot be readily determined that the State or a local government has occupied the land without permission and its intention to acquire it.

기록에 의하여 살펴보면, 이 사건 각 토지에 관한 폐쇄지적도(갑 제3호증의 4)에는 제1토지의 지번과 지목은 ‘육육오ノ이 도’로, 제2토지의 지번과 지목은 ‘육육육ノ이 도’로 각 기재되어 있고, 이 사건 각 토지에 횡으로 연결되어 있는 수원시 권선구 입북동 669-2의 지번과 지목은 ’육육구ノ이 도’, 같은 동 423-2의 지번과 지목은 ‘사이삼ノ이 도’로 각 기재되어 있으며, 1938. 12. 1.경 인천을 기점으로 하고 안산을 경과하여 수원시를 종점으로 한 지방도 3호선이 노선인정된 사정에 비추어 볼 때 이 사건 각 토지는 일제시대인 1938. 12. 1.경 도로로 편입된 것으로 보이는 점, 그 무렵부터 이 사건 각 토지는 경기도에 의하여 지방도 3호선의 일부로 점유ㆍ관리되면서 일반 공중의 통행로로 제공되어 오다가 1971. 8. 31.부터는 국도 42호선의 일부로 노선지정되어 피고에 의해 점유ㆍ관리되면서 현재에 이르기까지 일반 공중의 통행로로 계속 제공되어 오고 있는 점, 위 도로편입 이후 이 사건 각 토지에 관하여 지적공부나 등기부가 존재하지 아니하다가 1974. 3. 30.에 이르러 제1토지에 관한 토지대장이 작성되고, 1996. 11. 1. 피고 명의로 소유권보존등기가 경료되었으며, 제2토지에 관해서는 현재까지도 토지대장이 미복구된 상태인 점 등을 알 수 있는바, 이러한 사정을 앞서 본 법리에 비추어 보면, 피고가 이 사건 각 토지의 소유자가 따로 있음을 알면서 이 사건 각 토지를 점유해 온 것이라고 단정할 수 없을 뿐 아니라, 이 사건 각 토지를 피고가 점유하게 된 경위나 점유의 용도 등을 감안할 때 1938. 12. 1.경 이 사건 각 토지가 도로로 편입될 당시 국가가 공공용 재산의 취득절차에 따라 소유권을 적법하게 취득하였을 가능성도 배제할 수 없다고 할 것이므로, 비록 피고가 이 사건 각 토지의 취득절차에 관한 서류를 제출하지 못하고 있다 하더라도 그러한 사유만으로 이 사건 각 토지에 관한 피고의 점유가 무단점유임이 입증되었다고 보기 어렵고, 따라서 피고의 이 사건 각 토지에 관한 자주점유의 추정이 번복된다고 할 수 없다.

Meanwhile, Supreme Court en banc Decision 95Da28625 delivered on August 21, 1997, Supreme Court Decision 2000Da64472 delivered on March 27, 2001, etc. also purported that the presumption of the autonomous possession is broken if the State or a local government, without a specific title, has taken the procedure for acquiring public property under the Local Finance Act or the State Property Act, such as its own burden or donation, or has incorporated the private land into the road site without obtaining the consent of its owner, and it does not purport that the presumption of the autonomous possession should be reversed immediately if the possessor does not recognize the title of the autonomous possession claimed by him.

In the same purport, the judgment of the court below cannot be readily concluded that the defendant occupied the land 1 and 2 without permission, and otherwise, it is somewhat insufficient to determine that there is no evidence to acknowledge the defendant's illegal occupancy, but it is just in the conclusion of rejecting this part of the plaintiffs' assertion, and there is no illegality in the violation of the precedents as otherwise alleged in the ground of appeal.

3. Ex officio determination

In cases where the acquisition by prescription is completed by occupying unregistered land for twenty (20) years, it is difficult to view that the State as the owner of the unregistered land is in the position to exercise ownership against the State due to the relationship with which the State bears the obligation to perform the procedure for registration of ownership transfer on the ground thereof, and that he/she is given a judgment on ownership confirmation and does not change in such position. Under such circumstances, seeking the confirmation of ownership against the State should be deemed dance and intention, and therefore, there is no legal interest to obtain the confirmation judgment (see, e.g., Supreme Court Decisions 91Da14420, Dec. 10, 1991; 94Da13480, Jun. 9, 1995).

As legally determined by the court below, in case where the defendant occupied the land No. 2 unregistered as owned by the plaintiffs from August 31, 1971 to the point of view, and the acquisition by prescription was completed on August 31, 1991 at the expiration of twenty years thereafter, the defendant may claim against the plaintiffs for the implementation of the procedure for the registration of transfer of ownership based on this ground, and the plaintiffs shall bear the obligation to comply with it. Thus, the plaintiffs in such position are not required to obtain a judgment on the ownership confirmation against the defendant as to the land No. 2, unless there are other special circumstances.

Thus, although the land No. 2 in the lawsuit of this case had no legal interest in claiming confirmation of the plaintiffs' ownership, it should be dismissed, the court below erred in the misapprehension of legal principles as to the interest in the lawsuit of confirmation, and it is obvious that this affected the conclusion of the judgment, and therefore, this part of the judgment of the court below cannot be maintained.

4. Conclusion

Therefore, the part of the judgment below regarding the claim for confirmation of ownership of the land No. 2 in the judgment below is reversed, and it is sufficient for the Supreme Court to render a judgment, and therefore, it is reversed in accordance with Article 437 of the Civil Procedure Act. This part of the judgment of the court of first instance is revoked, and this part of the lawsuit is dismissed. The remaining appeals by the plaintiffs are all dismissed. It is so decided as per

Justices Kim Ji-hyung (Presiding Justice)