[1] In a case where a purchaser believed that a part of the adjoining land belongs to the land purchased or acquired by him/her by mistake in purchasing or acquiring the land, whether the buyer's possession of the adjoining land constitutes a third party possession on the ground that the method of occupancy of the adjoining land is to install and manage a grave (negative)

[2] Whether the possessor may oppose the registered titleholder upon the completion of the acquisition by prescription where a third party has completed the registration of ownership preservation in accordance with the Act on Special Measures for the Registration, etc. of Ownership of Real Estate after the expiration of the period of acquisition by prescription (negative)

[3] In a case where a person who had ownership at the time of the completion of the prescription period for possession of unregistered land completes the registration of ownership preservation in his/her own name after the completion of the prescription period, or completes the registration of ownership preservation in his/her name, whether the possessor may claim the completion of the prescription against the registered titleholder

[4] The scope of the right to grave base

[1] In the course of the commencement of possession by purchasing or acquiring the land, if the purchaser occupies a part of the adjoining land by mistake in believing that it belongs to the land he/she purchased or acquired, the possession of the part of the adjoining land shall be deemed to be based on the owner’s intent. In this case, the possessor’s intent of possession shall not be denied on the ground that the method of occupying the adjoining land was the installation and management of a grave.

[2] A person who has completed the preservation registration of ownership of another's land pursuant to the former Act on Special Measures for the Registration, etc. of Ownership Transfer (No. 4502, Nov. 30, 1992) shall be the owner only after the preservation registration. The registered titleholder shall be the new interested party after the expiration of the prescription period, barring special circumstances, unless there are special circumstances. Thus, the possessor shall not oppose the registered titleholder upon the completion of the prescription period.

[3] Even if a person who had ownership in the land remaining unregistered at the time of completion of the prescription for acquisition of ownership by possession completed the registration of ownership preservation in his name after the completion of the prescription period, such person cannot be deemed as a new interested party after the completion of the prescription period, because it is not a registration of change in ownership. Moreover, the completion of the registration of ownership preservation in the name of the heir of the owner of unregistered land does not constitute a change in the owner affecting the prescriptive acquisition. In such a case, the person may claim the completion of the prescription

[4] The right to grave base shall not only apply to the base of a grave itself (the lower part of the grave), but also to the area including the vacant area around the base of a grave within the necessary scope for the protection and removal of a grave, which is the purpose of the installation of the grave, and its definite scope shall be individually determined in each specific case.

[1] Articles 197(1) and 245(1) of the Civil Act / [2] Article 245(1) of the Civil Act; Article 6 of the former Act on Special Measures for the Registration, etc. of Ownership of Real Estate / [3] Article 245(1) of the Civil Act / [4] Articles 185 and 279 of the Civil Act

[1] Supreme Court Decision 98Da32878 delivered on November 10, 1998 (Gong1998Ha, 2843), Supreme Court Decision 9Da586, 5873 delivered on June 25, 199 (Gong1999Ha, 1494), Supreme Court Decision 9Da5870, 58587 delivered on September 29, 200 (Gong200Ha, 2194), Supreme Court Decision 2001Da5913 delivered on May 29, 207 (Gong2001Ha, 1479, 1479) / [2] Supreme Court Decision 95Da9624, 9631 delivered on September 26, 1995 (Gong94, 194, Supreme Court Decision 97Da984979 delivered on September 29, 209)

Plaintiff

Defendant

Supreme Court Decision 2004Da49044 Delivered on January 14, 2005

Jeonju District Court Decision 2005Na1356 Decided November 17, 2006

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

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

Unless there are other special circumstances, a person who installs or owns a grave on another’s land occupies another’s land only to the extent necessary to preserve and manage the grave, and thus, the intention of possession in the nature of the possession is not presumed (see, e.g., Supreme Court Decision 97Da3651, 3668, Mar. 28, 1997). However, in a case where a person purchases or acquires a parcel of adjoining land in order to believe that the purchaser does not accurately confirm the boundary of the adjoining land and that part of the adjoining land belongs to the land purchased or acquired by him/her due to mistake, it shall be deemed that the possession of part of the adjoining land is based on the owner’s intention (see, e.g., Supreme Court Decision 2001Da5913, May 29, 2001). In such a case, the method of occupying the adjoining land was the installation and management of the grave, and thus the possessor’s intent

According to the facts and records acknowledged by the court below, the forest land of this case is registered in the name of the plaintiff and 3, and is attached to the above forest land (number omitted) owned by the defendant to the (name omitted) clans. Since the defendant's graves were installed on the boundary of both the forest land around 1952, the defendant continued to preserve and manage the above grave since the defendant's graves were installed on the boundary of both the forest land. In appearance, the boundary of the above two forest land cannot be identified, and the above forest land cannot be identified from the boundary of the above forest land to the point of surveying the boundary of the boundary, and it can be seen that the above grave was separated from the area of the forest land of this case depending on the use of any survey method while conducting a boundary restoration survey. Meanwhile, even after examining the records, there is no material to find that the defendant knew that part of the above grave was in the forest of this case, and there is no trace of raising an objection against the above grave from the plaintiff side until 195. Thus, if this circumstance is in this way, it is reasonable to deem that the defendant's or the above clan owned as the forest of this case.

Nevertheless, the lower court rejected the Defendant’s claim for the acquisition by prescription without examining the existence of other special circumstances solely on the ground that “the person who installs and owns a grave on the land of another person shall not be presumed to have an intention to own by the nature of the possession.” In so doing, the lower court erred by misapprehending the legal doctrine on the presumption of possession by autonomy and failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment. The first ground for appeal assigning this error has merit.

2. Regarding ground of appeal No. 2

A person who has completed registration of preservation of ownership in accordance with the Act on Special Measures for the Registration, etc. of Transfer of Real Estate Ownership with respect to land owned by another person shall be the owner only by the registration of preservation, and if the period of the person who occupies the land has expired before the completion of the registration, the registered titleholder shall be the new interested party after the completion of the prescription, barring special circumstances. Thus, the possessor cannot oppose the registered titleholder upon the completion of the prescription period (see Supreme Court Decision 97Da42663, Dec. 26, 1997, etc.). However, even if a person who held ownership with respect to the land remaining unregistered at the time of the completion of the prescription due to possession completed the registration of preservation of ownership after the completion of the prescription period, such person cannot be deemed as a new interested party after the completion of the prescription period, and the completion of the registration of preservation of ownership in the name of the unregistered land does not correspond to the change of the registered titleholder after the completion of the prescription period, and in such a case, it may be asserted to the registration titleholder (see Supreme Court Decision 408Da4984, Apr. 198, 198, 1997, 1998.

This part of the judgment of the court below, i.e., "the defendant has occupied the grave of this case for at least 20 years with his intention to own the grave of this case and the period of the acquisition by prescription has expired but the defendant became unable to assert the plaintiff's acquisition by prescription since the plaintiff transferred the ownership of the forest of this case on or around January 18, 1995," although the judgment of the court below was based on the premise that the presumption of possession without recognition by the court below is recognized, the judgment of the court below is based on the premise that "the plaintiff completed the registration of preservation of ownership in the name of 1/4 of the forest of this case on January 18, 1995," and if the defendant's possession is recognized by the defendant's intention to own the forest of this case, the court below should have deliberated on the relation between the plaintiff and the plaintiff, and should have determined whether the plaintiff constitutes a new interested person after the acquisition by prescription."

3. In addition, the right to grave base has to not only the base itself (the bottom part of the grave), but also to the area, including the vacant area around the base of the grave, within the extent necessary for the protection and removal of the grave, which is the purpose of the installation of the grave, and its clear scope is individually determined in specific cases (see, e.g., Supreme Court Decision 94Da28970, Aug. 26, 1994). The court below determined that the defendant acquired the right to grave base of the above non-party 1 among the forest of this case, and dismissed the plaintiff's claim for the restoration of the grave and delivery of the land, but also ordered the removal and removal of the part of the land without examining whether the installation was necessary for the protection and removal of the grave of the non-party 1's grave, on the ground that it was installed at the time of the combination with the defendant's temporary burial and delivery of the land with the non-party 2 in around 1995.

4. Therefore, the part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the lower court for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Hwang-sik (Presiding Justice)