In cases where a person continuously occupies the entire previous land and the entire land scheduled for substitution before and after the designation of the land scheduled for substitution, whether the occupancy period may be aggregated in calculating the acquisition period (affirmative)

Where all of the previous land is occupied even after the designation of the land scheduled for substitution is occupied, the possession of the land scheduled for substitution is deemed to be the same as the possession of the previous land, regardless of increase or decrease in the area, and where the possession of the previous land or the possession of the land determined for substitution and the possession of the land is continued, the occupancy period may be aggregated in calculating the acquisition period of the ownership of real estate due to the possession, if the possession continues.

Article 245 of the Civil Act

Supreme Court Decision 80Da2825 Decided November 23, 1982 (Gong1983, 187) Supreme Court Decision 88Meu18795 Decided September 26, 1989 (Gong1989, 1553), Supreme Court Decision 95Da15742, 15759 Decided July 25, 1995 (Gong1995Ha, 2954), Supreme Court Decision 94Da53785 Decided November 29, 196 (Gong197, 151)

Plaintiff

Korea

Seoul District Court Decision 97Na8013 delivered on October 31, 1997

The part of the judgment below concerning the conjunctive claim is reversed, and that part of the case is remanded to the Panel Division of the Seoul District Court. The plaintiff's remaining appeal is dismissed.

We examine the grounds of appeal.

1. The plaintiff filed an appeal against the main claim, but the appeal does not indicate the grounds of appeal in the petition of appeal and the appellate brief.

2. According to the reasoning of the lower judgment, the lower court determined as follows.

A. Summary of fact-finding

On September 6, 1960, the Defendant registered the preservation of ownership in the name of the Defendant in accordance with the Act on Special Cases concerning the Transfer of Ownership for Land on June 8, 1965, the Yangju-gun ( Address 1 omitted) which was the land prior to the instant land substitution. However, on the other hand, the Nonparty registered the preservation of ownership in accordance with the former Act on Special Cases concerning the Transfer of Ownership for Land on June 8, 1965, and the Plaintiff completed the registration of ownership transfer for reasons of sale on June 3, 1965, following the preservation registration on the same date. The Yangju-gun of Gyeonggi-do established the implementation plan for the farmland improvement project in Yangju-gun-gun, the implementation plan for the farmland improvement project on October 23, 1975 and completed the division rearrangement pursuant to the farmland improvement project on July 7, 1978, the Plaintiff acquired the registration of ownership transfer from the Nonparty on the land prior to the land substitution ( Address 2 omitted) to the Namyang-si (hereinafter “instant land”).

B. The judgment of the court below

Based on such factual basis, the lower court rejected the Plaintiff’s preliminary claim for acquisition by prescription on the ground that, even if the Plaintiff occupied the land before replotting from June 8, 1965, the continued possession of the instant land after replotting was severed due to the determination of replotting, and accordingly, the prescriptive acquisition may be recognized only where the prescriptive period has already expired prior to the determination of replotting or the prescriptive period has expired newly counting from the determination of replotting. However, the Plaintiff’s preliminary claim for acquisition by prescription was rejected on the ground that the Plaintiff’s commencement of occupation of the land before replotting had not elapsed from July 7, 1978, when the land was determined to have been occupied until the expiration of the prescriptive period of 20 years thereafter.

3. Where a replotting disposition has been taken, the previous land is a change in the cadastral, shape, and location of the entire land due to the replotting. Thus, in cases where a part of the previous land is occupied by the disposition of designating the reserved land for replotting and continuously occupies part of the reserved land for replotting, the occupant of the specific part of the previous land cannot be deemed to have occupied the specific part of the reserved land for replotting or the substituted land even before the reserved land for replotting is designated (see Supreme Court Decision 92Da30306, May 14, 1993). In such cases, the continued possession of the previous land is severed as stated in the judgment of the court below.

However, in cases where a person occupies the entire land as a planned land substitution even after the designation of a planned land substitution is continuously occupied as a whole, the possession of the land as a planned land substitution is deemed to be the same as that of the previous land regardless of the increase or decrease of the area. As such, in cases where the possession of the previous land or the possession of the land as planned land substitution and the possession of the land as determined is continued, the occupancy period may be aggregated in calculating the acquisition period of the ownership of real estate due to the possession (see Supreme Court Decision 88Meu18795, Sept. 26, 198).

Therefore, the court below should examine whether the plaintiff continued to possess the whole land of this case before and after the disposition of replotting, and if such facts are recognized, the plaintiff can assert the prescriptive acquisition by adding up the possession period of the previous land, the land scheduled for substitution and each possession period of the land scheduled for substitution and the land determined for substitution. However, the court below concluded that the prescriptive acquisition period for the land of this case has not expired on the grounds of its stated reasoning. Thus, the court below erred by misapprehending the legal principles on the prescriptive acquisition of ownership of real estate due to replotting and possession, which affected the conclusion of the judgment by failing to exhaust all necessary deliberation. The ground of appeal pointing this out

4. Therefore, the part of the judgment below regarding the conjunctive claim is reversed, and that part of the case is remanded to the court below for a new trial and determination. The plaintiff's remaining appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Cho Chang-hun (Presiding Justice)