Where the possessor's intention and presumption of good faith are reversed;

The presumption that the plaintiff has already acquired the ownership of a site legally and the defendant has no evidence that he had the right to possess the site, thus, the presumption that the defendant has occupied it in good faith with his will and in good faith.

Article 197 of the Civil Act

Supreme Court Decision 63Da262 Delivered on June 20, 1963

[Defendant-Appellee] Plaintiff 1 et al.

Attorney Park Jae-il, Counsel for the defendant-appellant

Seoul High Court Decision 78Na831 delivered on February 6, 1979

The part of the judgment below against the plaintiff is reversed, and this part of the case is remanded to the Seoul High Court.

The grounds of appeal by the Plaintiff’s attorney are examined.

According to the judgment of the court below, according to Article 197 of the Civil Act, the court below presumed that the possessor in good faith and openly occupied the land portion of the plaintiff's claim for return of unjust enrichment. However, in the case of loss in the lawsuit on this right, the possessor shall be deemed to be the possessor in bad faith from the time of the lawsuit to the time of the lawsuit. Thus, the defendant may be presumed to have occupied the land in good faith until the time of the lawsuit on this right.

However, as acknowledged by the court below, the presumption that the ownership of the building site was legally acquired before 1972 by the plaintiff and the defendant had no evidence that he had the right to possess the building site and therefore, that the defendant occupied it in good faith is reversed. Therefore, the defendant must assert and prove that there was a fact that he had the right to possess and use the building site. According to the evidence in the records, the defendant cannot be found that prior to the filing of the lawsuit, the defendant argued that he was a bona fide possessor under Article 201 of the Civil Act, such as ownership, superficies, lease, etc., or that he was taking any measure on the premise that he had the right to possess and use the building site. However, upon the filing of the lawsuit, it cannot be viewed that the defendant was acting in good faith only because he asserted that there was legal superficies under the Act on the Disposal of Property Belonging to Which no legal grounds exist, or that there was a legal superficies under custom. Therefore, the judgment of the court below as above is erroneous in the misapprehension of legal principles as to the bona fide possession. It is so decided as per Disposition with the assent of all participating Justices.

Justices Kang Jae-hee (Presiding Justice)