[1] In a case where a purchaser, by mistake, has occupied a part of the adjoining land in the name of the purchased site when acquiring the land along with the ground building and commencement of possession thereof, whether the possession of the adjoining land may be deemed possession frequently (affirmative)

[2] Where the actual area of a site subject to sale considerably exceeds the area on the register, the nature of the purchaser's possession of the excess (=the owner's possession)

[3] In a case where one parcel of land is divided into the part of land subject to prescriptive acquisition through partition of co-owned property and the remaining land after the prescriptive acquisition for part of one parcel of land was completed, whether the possessor may oppose the previous co-owner's co-ownership as to the completed part of prescriptive acquisition by prescription against the other co-owners (negative)

[1] Articles 197(1) and 245(1) of the Civil Act / [2] Articles 197(1), 245(1), and 563 of the Civil Act / [3] Articles 245 and 268 of the Civil Act

[1] [2] Supreme Court Decision 99Da5866, 5873 delivered on June 25, 199 (Gong1999Ha, 1494) / [1] Supreme Court Decision 90Da12977 delivered on February 22, 1991 (Gong1991, 1050) / [2] Supreme Court Decision 98Da32878 delivered on November 10, 1998 (Gong198Ha, 2843) / [3] Supreme Court Decision 92Da29351, 29368 delivered on February 9, 193

Plaintiff (Law Firm Rops, Attorneys Kim U-young et al., Counsel for the plaintiff-appellant)

Defendant (Attorney Kim Young-young, Counsel for the defendant-appellant)

Incheon District Court Decision 2005Na3151, 3168 Decided July 6, 2006

All appeals are dismissed. The costs of appeal are assessed against each party.

The grounds of appeal are examined.

1. As to the ground of appeal by the Plaintiff (Counterclaim Defendant; hereinafter “Plaintiff”)

A. According to the reasoning of the judgment below, the court below, based on the adopted evidence, purchased 2 bonds on September 6, 1967 by the deceased non-party 1 (hereinafter “the deceased”) from Non-party 2 at the time of original adjudication on September 5, 1967, and completed the registration of ownership transfer on September 6, 1967. The defendant’s house is currently owned by the deceased through several renovations and repairs, and is in the current status of wood and mentir block block block one house and 1 bonds attached thereto. The defendant’s house is part of the adjoining land owned by the plaintiff, and the above part of the above 26m2 at the time of original adjudication on September 5, 1967 is owned by the plaintiff’s land and 5m2 at each of the above part of the building owned by the plaintiff’s 5m2 at the time of ownership and 5m2 at each of the above part of the building. The plaintiff’s house is owned by the plaintiff’s land and 5m2 at each of the above m2.

Examining the facts established by the court below in light of the records, the court below did not err by misapprehending the facts against the rules of evidence as to the identity of the land possession status of the defendant's house. This part of the grounds for appeal is without merit.

B. In the grounds of appeal on this part, the plaintiff alleged that the area occupied by the defendant for not less than 20 years does not exceed the section of the "B" on the ship at the time of the original adjudication, but the part of the court below's fact finding that the plaintiff also occupied the part of the plaintiff at the time of the original adjudication was erroneous in the misconception of facts due to the violation of the rules of evidence against the rules of evidence, and it is not a legitimate ground of appeal because it is merely an error in the selection of evidence and fact finding which belong to the exclusive jurisdiction of the fact-finding court, even if examining

C. In purchasing or acquiring a site along with a building on the ground and commencing possession, even if the purchaser believed and occupied part of the adjoining land as belonging to the site he/she purchased or acquired as a result of an accurate verification of the cadastral boundary line with the adjoining land, so long as he/she actually occupies a part of the adjoining land, the possession of the adjoining land shall also be deemed to be based on his/her own intent (see, e.g., Supreme Court Decisions 90Da12977, Feb. 22, 1991; 9Da586, 5873, Jun. 25, 199).

Meanwhile, it is reasonable to view that the contracting party was aware of such fact in the absence of special circumstances where the area of the site subject to sale considerably exceeds the area indicated in the registry. In such a case, barring special circumstances such as the seller’s agreement to acquire and transfer the ownership of the excess portion, such excess portion shall be deemed a sale of the right of occupation and use merely, and therefore, such possession constitutes a possession by the nature of the title [see, e.g., Supreme Court Decisions 9Da586, Jun. 25, 1999; 9Da586, 5873, Jun. 25, 199].

However, according to the reasoning of the judgment below, the deceased’s actual site area of 182-1, Bupyeong-gu, Incheon, Bupyeong-gu, Incheon, 182-1 was 339.505 square meters prior to the first purchase, but around February 12, 1988, 70 square meters among them was known that it was invaded by a building on the neighboring land and sold in installments. The part of the land in this case was under the actual boundary of the exterior walls of the Plaintiff’s land, and the above site possession status of the housing owned by the Defendant appears to have been identical at the time of purchase. In light of the above, the actual site area of the deceased’s land area of 182-1, which was delivered by purchase, was added to the area of the land in this case except for the area 70 square meters connected by the building on the adjacent land, and the area of the land in this case’s possession cannot be seen as being unlawful in light of the legal principles as seen above. Thus, even if the area occupied by the Plaintiff’s land was occupied, it cannot be seen to be seen as 964.

In addition, the plaintiff's assertion that the deceased purchased the land of 182-1 339.505 m2, Bupyeong-gu, Incheon Metropolitan City prior to the division with a focus on the lot number and that the above 182-1 m2 as the housing site was not purchased, and that the land of the housing owned by the defendant is not the object of sale, is the first argument in the final appeal, and it cannot be a legitimate ground for appeal, and as seen earlier, in this case where it is recognized that part of the adjoining land belongs to the land he purchased and acquired, and possession is possession is carried out autonomously due to the mistake, the circumstance of the object stipulated in the sales contract does not interfere with the recognition of the autonomous possession, and therefore, it is not reasonable in this respect.

2. As to the Defendant’s ground of appeal

A. Co-owned property partition is a co-owner's exchange or sale of shares between co-owners. Thus, in case where one piece of land is divided into the land which became the subject of prescriptive acquisition through the partition of co-owned property and the remaining land after the prescriptive acquisition of possession of part of one piece of land was completed, the co-owned share of one co-owner as to the part which became the subject of prescriptive acquisition was transferred to the other co-owners by the partition of co-owned property. Therefore, the possessor cannot oppose the transferred co-owner's co-owned share as to the part of which prescriptive acquisition has been completed by prescription against the other co-owners (refer to Supreme Court Decision 92Da29351, 29368 delivered on February 9, 1993).

In the same purport, the court below is just in holding that the defendant could not oppose the plaintiff's co-ownership as to the non-party 3's share in the dispute part of this case as co-owned property partition, and it does not err in the misapprehension of legal principles as to the scope of the third party who had a new interest after the completion of the prescription period.

Cases cited in the grounds of appeal are inappropriate to be invoked in this case, unlike cases.

The ground of appeal on this part is rejected.

B. The Plaintiff did not raise any objection in the process of remodeling and repairing the Defendant’s house more than one time, or the Plaintiff cannot be deemed to have given implied permission to occupy and use the deceased’s land or renounced the Plaintiff’s right to occupy and use the land in the instant dispute, on the sole basis that the Plaintiff sought removal of the instant case after redevelopment was commenced in the vicinity. Therefore, the lower court’s judgment did not err by misapprehending the implied agreement between the parties or the interpretation of a special agreement on the use, profit, and management between co-owners. Therefore, it cannot be accepted.

In addition, the removal of the defendant's house opened and repaired on several occasions cannot be deemed as going against the principle of good faith or the principle of prohibition of abuse of rights solely on the ground that it is not socially and economically desirable. Therefore, even if the court below did not deliberate and make a decision on this issue, it is obvious that it would be a case where it would be rejected, and thus, the decision of the court below does not affect the conclusion of the judgment. Therefore, there is no reason to hold an appeal to the effect that the court below erred in the omission

3. Conclusion

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

Justices Cha Han-sung (Presiding Justice)