The burden of proving the intention of possession in the prescriptive acquisition

In the case of the acquisition by prescription, the intention of possession, which is the requirement for the possession with intention of possession, must be determined by the nature of the source of possessory right which objectively causes the acquisition by possession, or if the nature of the source of possessory right is not clear, the possessor shall be presumed to have occupied as the intention of possession pursuant to Article 197(1) of the Civil Act. Therefore, the possessor does not have the responsibility to prove that he is the possession with intention of possession with the nature of the source of possessory right, and

Articles 245 and 197(1) of the Civil Act

Supreme Court Decision 82Da708, 709, 82Meu1792, 1793 Decided July 12, 1983

Plaintiff 1 and four plaintiffs, et al., Counsel for the plaintiff-appellee

[Defendant-Appellant] Defendant 1

Seoul Central District Court Decision 85Na2912 delivered on November 7, 1986

The appeal is dismissed.

The costs of appeal shall be borne by the defendant.

The grounds of appeal are examined.

In the case of the acquisition by prescription, the intention of possession, which is the requirement for the possession with intention of possession, must be determined by the nature of the source of possessor’s right which objectively causes the acquisition by possession, or if the nature of the source of possessor’s right is not clear, the possessor is presumed to have possession with the intention of possession pursuant to Article 197(1) of the Civil Act. Thus, the possessor is not responsible for proving that he is the possession with the nature of the source of possessor’s right, and the possessor has the burden of proof as to the possession with respect to the other party who asserts that the possession is the possession with intention of possession with the burden of proof (Supreme Court Decision 82Da708,709, 709, 82Meu1792, 1793 Decided 12, 1983; Supreme Court Decision 8

According to the reasoning of the judgment below, the court below found the defendant's assertion that the deceased non-party 1 purchased the real estate of this case from the non-party 2 at the end of November 1960, with the knowledge that it was owned by the Dong, and died on December 15, 197, after being delivered, that the deceased non-party 1 resided together with his family in the above ground building with his intention to possess it, and thereafter, the non-party 3 and his father, who were his wife, continuously resided in the above ground building and used the real estate of this case as the site of the above building. However, the court below rejected the defendant's assertion that the above non-party 1 was holding possession of the real estate of this case as the defendant's person as the manager of the front tomb tree tree and the neighboring seed field.

However, according to the legal principles as seen earlier, since the above non-party 1 is presumed to have commenced possession with the intention of possession, the above non-party 1 is presumed to have been possession with the intention of possession, not to have the responsibility to assert and prove that the above non-party 1 possession is possession with the above non-party 1, but has the responsibility to assert and prove that the above non-party 1 possession is possession with the intention of possession with the intention of possession. Thus, unless the defendant's assertion that the non-party 1's possession with the above non-party 1 is the possession with the intention of possession with the intention of possession, the above non-party 1

Although the court below did not state that the plaintiffs had the burden of proof as to the possession of the real estate, the court below rejected the evidence consistent with the defendant's argument that the possession of the above non-party 1 is the possession of the owner, in light of the records, it is just and acceptable in light of the records, and there is no error of law by misunderstanding the legal principles of the principle of free evaluation of evidence, such as the theory of lawsuit, nor by misunderstanding the facts that constitute the whole right of the court below, or by misunderstanding the facts that the court below purchased the real estate of this case from the above non-party 2.

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

Justices Yellow-ray (Presiding Justice)