[1] The meaning of possession of an article as an element for acquisition by prescription, and the standard for determining whether it constitutes such requirement

[2] Whether the government can be deemed to have commenced possession of the site of a road zone only by the public notice of determination of a road zone (negative with qualification)

[3] In a case where a person who filed a petition for registration of cancellation of ownership transfer has filed a lawsuit against an occupant on his/her own ownership and the lawsuit against the occupant for registration of cancellation of ownership transfer becomes final and conclusive as a loss of the occupant, whether the possession of the occupant is converted into the possession

[1] Possession of an article as a requirement for acquisition by prescription refers to the objective relationship that appears to be in the factual control of a person under the social concept, and thus, in order to be de facto control, it does not necessarily mean only physical and real control over an article. It shall be determined for the purpose of unity according to the social concept by taking into account the time and space between the article and a person, spatial relations, the possibility of exclusion from control of another person, etc.

[2] Even if the State publicly announced the determination of a road zone pursuant to the provisions of the Road Act, barring special circumstances, such as where it appears that the State had an intention to exclude the possession management of the controlling entity by the above public announcement, it cannot be deemed that the State commenced the possession of the site of the road zone, and it is reasonable to view that the possession of the former occupant continues to exist even after the State publicly announced the determination of

[3] If the litigation case is finalized against the possessor by filing a lawsuit for cancellation of ownership transfer registration in the name of the possessor in relation to land against the possessor by claiming ownership ownership, and the registration of ownership transfer in the name of the possessor becomes final and conclusive as a loss of the possessor, the possessor shall be deemed as the possessor in bad faith in relation to the land pursuant to Article 197(2) of the Civil Act. In such a case, the possessor in the land becomes a direct party to the lawsuit for cancellation of ownership transfer registration and became aware of the legitimate owner through the lawsuit, and further, the possessor in the final and conclusive judgment against the loss becomes final and conclusive as to the registration of ownership transfer in the name of the possessor in relation to the land as to the registration of ownership transfer in the name of the possessor in question. Thus, since it is objectively changed to the possessor in bad faith, unlike the situation of simple bad faith possession, the possession of the land by the possessor in question shall be deemed to have been converted to another owner after

[1] Articles 192, 197 and 245 of the Civil Act / [2] Articles 192 and 197 of the Civil Act, Article 25 of the Road Act / [3] Articles 197 and 245 of the Civil Act

[1] Supreme Court Decision 97Da2665 delivered on August 22, 1997 (Gong1997Ha, 2795), Supreme Court Decision 96Da888 delivered on February 24, 1998 (Gong1998Sang, 839), Supreme Court Decision 98Da58924 delivered on March 23, 199 (Gong199Sang, 737) / [2] Supreme Court Decision 96Da6479 delivered on May 28, 1996 (Gong196Ha, 1986) / [3] Supreme Court Decision 88Da3618 delivered on April 25, 198 (Gong1989, 806) / [3] Supreme Court Decision 196Da136379 delivered on October 196, 196 (Gong1986, 197Da373695 delivered on October 196).

Plaintiff 1 and 7 others

Plaintiff (Counterclaim Defendant) 9 (Law Firm Han field, Attorney Kim Dong-hwan, Counsel for the plaintiff-appellant)

Republic of Korea (Attorney Song-ho et al., Counsel for the defendant-appellant)

Daejeon District Court Decision 98Na4123, 4130 delivered on January 20, 200

The judgment of the court below is reversed, and the case is remanded to Daejeon District Court Panel Division.

1. Possession of an article as a requirement for prescriptive acquisition refers to the objective relationship which appears to be in the factual control of a person under the social concept. In order to be de facto control, it shall not necessarily mean only physical and real control over an article. It shall be determined for a purpose in conformity with the social concept by taking into account the time and space relationship with the article, the principal right relationship, the possibility of exclusion from control of others, etc. (see, e.g., Supreme Court Decisions 91Da38266, Jun. 23, 1992; 96Da19512, Sept. 10, 196; 98Da58924, Mar. 23, 1999). However, even if the State announced the determination of a road zone as a national expressway under the Road Act-related provisions, barring any special circumstance, it shall not be deemed that the State’s announcement of possession of a road zone continues to commence after the said determination was made (see, e.g., Supreme Court Decision 96Do596.

According to the reasoning of the judgment below, the court below determined that the above forest land owner was included in the reserved forest under Article 1 of the Forestry Decree (No. 10 of the Decree No. 10 of Jun. 20, 191) and Article 9 of the Enforcement Rule (No. 74 of the Ordinance of the Ministry of Shipbuilding No. 50 of Jun. 20, 191), which was in force on February 9, 1937, 1935, and that the above forest land owner was not the deceased non-party, and that the defendant's land register and cadastral record were destroyed on May 1, 1965 due to the above 6 and 25 square meters of land owned by the non-party 1, 300 square meters of land, and that the defendant's possession of the forest land was not completed on October 20, 1965, and the forest land owner was divided into 37 square meters of land (No. 37, 197).

However, even if examining the records, there are no special circumstances, such as considering the intention of excluding the possession management of the controlling body by the above notification, or there is no evidence to support that the defendant actually controlled each of the above real estate from the date of the above notification. Thus, the court below's finding that the possession of each of the above real estate was commenced on April 13, 1971 from the date of the notification of the decision on the road zone as of April 13, 1971 was erroneous in matters of law in violation of the rules of evidence, or in misunderstanding the legal principles on possession

2. A. According to the reasoning of the judgment below, the court below rejected the plaintiffs (including the counter-defendant)'s assertion that the defendant's possession of each real estate of this case constitutes maliciously unauthorized possession, on the ground that there is no evidence to support that the defendant's possession of each real estate of this case is nothing more than that of another person at the time the defendant's commencement of possession of each real estate of this case, and that the defendant's possession of each real estate of this case through a juristic act, etc. which could constitute the cause of acquisition of ownership. Thus, since the defendant's possession of each real estate of this case is deemed as a result of the defendant's possession of the real estate of this case without any legal requirement which could constitute the cause of acquisition of ownership, since it is well known that there is no legal act, etc.

However, as determined by the court below, if there is no evidence to prove that the defendant's possession of the real estate in this case constitutes an unauthorized possession of the real estate owned by another person without any legal requirement which can cause the acquisition of ownership, it is reasonable to view that the presumption of autonomous possession of the defendant's possession of the real estate in this case was broken, and even if there are circumstances such as the fact that the cadastral record of each of the real estate in this case was destroyed, or that it was difficult to expect the defendant to undergo a separate compensation procedure due to the incorporation into the road due to the relationship registered as the owner, such circumstance alone does not easily accept the judgment of the court below that the defendant's possession of each of the real estate in this case constitutes an autonomous possession.

B. Meanwhile, in a case where a suit against a possessor for cancellation of ownership transfer registration in the name of an possessor is filed against a possessor on the land by claiming ownership, and the litigation case becomes final and conclusive against a possessor on the land by filing a lawsuit against the possessor on the registration of cancellation of ownership transfer registration in the name of the possessor on the land, the possessor shall be deemed to be a malicious possessor on the land pursuant to Article 197(2) of the Civil Act, and in such a case, the possessor of the land becomes a direct party to the lawsuit for cancellation of ownership transfer registration, and finally became aware of the legitimate owner through the lawsuit, and further, the possessor was finally determined to have been liable for cancellation registration with respect to the registration of ownership transfer in the name of the possessor on the land as a result of a final and conclusive judgment against the loss, unlike a mere bad faith possession, and thus, the possession of the land shall be deemed to have been converted into another owner after the judgment of loss became final and conclusive (see Supreme Court Decision 96Da19857, Oct. 11, 1996).

According to the reasoning of the judgment below and the records, the defendant completed registration of preservation of ownership in the name of the defendant on January 29, 1974, but thereafter the plaintiff (the counter defendant; hereinafter referred to as "the plaintiff") 9 was filed a lawsuit against the defendant on June 10, 1993 for the execution of the procedure for cancellation of registration of preservation of ownership, and won the above plaintiff in the judgment of the Seoul District Court 93Na94626 decided May 23, 1995, and the defendant's appeal was dismissed in the judgment of 95Na24929 decided January 10, 196 and the judgment becomes final and conclusive around that time. Thus, the defendant shall be deemed to be the possessor in bad faith from the date the above lawsuit was filed, and the acquisition of acquisition of each of the real estate of this case shall be deemed to have been suspended, and since the judgment against the defendant became final and conclusive, the possession of each of the above land shall be converted into the possession of another owner.

Therefore, even if the Defendant’s possession of each of the instant real estate is recognized as possession by intention, the court below may recognize the prescriptive acquisition only after the lapse of the statute of limitations prior to the filing of the said lawsuit.

C. Ultimately, the judgment of the court below did not properly examine or erred in the misapprehension of legal principles as to the possession with autonomy, and such illegality also affected the conclusion of the judgment.

3. Therefore, without examining the grounds of appeal on the plaintiffs' conjunctive claim, the judgment below on the principal lawsuit and counterclaim is reversed, and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Hong-hoon (Presiding Justice)