The meaning of possession with respect to the acquisition by prescription

As a requirement for the recognition of the prescription for the acquisition of immovables, the possession with intention to control the same owner refers to a possession with the intent to control the same owner. It does not mean a possession with the title to control, that is, the ownership, or with the belief that the ownership exists.

Article 245(1) of the Civil Act

Supreme Court Decision 92Da30375 delivered on October 27, 1992 (Gong1992,3289) 92Da43654 delivered on December 22, 1992 (Gong1993,586) 92Da41498 delivered on April 9, 193 (Gong193,1362)

Plaintiff

Defendant 1 and three others

Daejeon District Court Decision 92Na2835 delivered on April 14, 1993

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

The grounds of appeal are examined.

The plaintiff's ground for the claim of this case is that the plaintiff purchased the land of this case [the part of the judgment in the area of 129 square meters large 129 square meters] from the non-party 1 on December 8, 1964, along with 46 square meters of the land of this case in Jung-gu, Daejeon ( Address 1 omitted) and occupied it from the time of delivery and possessed it from the time of delivery, and the prescriptive acquisition has been completed, and thus, the plaintiff is demanding the registration of transfer of ownership. Accordingly, the court below rejected the plaintiff's claim for the following reasons.

In other words, according to macroscopic evidence, the above ( Address 1 omitted) site was owned by Nonparty 2, and the plaintiff purchased it again from Nonparty 1, and was delivered to the deceased non-party 3 (the inheritee of the defendant) who was in the same fence. On December 31, 1964, the above ( Address 1 omitted) site was sold to the plaintiff directly from the above non-party 2, but it was delivered to the plaintiff on November 19, 1981, but the above site was occupied by the plaintiff up to now. The above non-party 1 purchased the above ( Address 1 omitted) site and the land was owned by the non-party 1 while purchasing it from the non-party 1 to the non-party 4 without paying the purchase price, and the plaintiff purchased it again from the non-party 1 to the non-party 2's land without paying the sale price for the above part, and without paying the sale price for the above (No. 6) land to the non-party 1, which was acquired from the above non-party 1.

However, as a requirement for the recognition of the statute of limitations for the acquisition of real estate, it refers to the possession with the intent to exercise the same control as the owner, i.e., the title to exercise such control, or the possession with the belief that the owner has ownership, i.e., the ownership, or the possession with the belief that the ownership has been held, and thus, it does not mean the possession (see, e.g., Supreme Court Decision 92Da43654, Dec. 22, 1992; Supreme Court Decision 90Da18838, Jul. 9, 191; Supreme Court Decision 85Meu230, Apr. 14, 1987; etc.). As recognized by the court below, even though the plaintiff did not purchase the part of the site of this case from the legitimate owner, and even though the plaintiff has been aware that the land of this case was the ownership of another person at the time of original adjudication, it cannot be deemed that the above possession was an possession with the nature of the title.

The judgment of the court below which concluded that the plaintiff's possession is the possession of the plaintiff on the grounds as stated in its holding is erroneous in the misapprehension of legal principles as to the possession with an intention to hold the acquisition by prescription, which is the requirement for acquisition by prescription

Therefore, the judgment of the court below 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.

Justices Kim Jong-soo (Presiding Justice)