(a) The burden of proving the intention of possession frequently in the acquisition by prescription;

B. In the case of paragraph (a) above, the degree of the proof

C. Whether it can be deemed that the State or a local government’s possession can be deemed as the possession of a third party solely on the sole basis that the State or a local government’s acquisition of possessory source by taking the procedure for acquisition of public property (negative)

A. The intention of possession, which is the content of possession with intention of possession, should be determined by the nature of the source of possessory right, but if the nature of the source of possessory right is not clear, the possessor is presumed to occupy the possession with intent of possession in a peaceful manner pursuant to Article 197(1) of the Civil Act. Thus, the possessor is not actively liable to prove that the possessor is possession with intention of possession, but is the party who asserts that the possession is possession with intention of possession.

B. In the case of the above “A”, the degree of proof of the possession of the other party refers to the intention of the original owner to exclude the ownership of the other party and to exercise exclusive control like his own property, it is sufficient to prove objective circumstances that it cannot be deemed that the owner has exercised exclusive control such as his own property by excluding the ownership of the other party, not only a typical source of possession such as superficies, chonsegwon, lease right, etc.

C. The mere fact that the State or a local government is not aware of the acquisition of source of possessory right by taking procedures for acquisition as public property, such as purchase or donation of land owned by an individual, cannot be deemed as possession with the nature of the source of possessory right.

(b)Article 245, Article 197, Section 1 (a) of the Civil Code;

A. (B) Supreme Court Decision 90Da18338 delivered on July 9, 1991 (Gong1991, 2115). Supreme Court Decision 89Meu12176 delivered on June 28, 1991 (Gong1991, 2012), Supreme Court Decision 91Da6139 delivered on July 12, 1991 (Gong1991, 2149), Supreme Court Decision 92Da8446 delivered on June 9, 192 (Gong192, 2125). Supreme Court Decision 91Da27259, 27266 delivered on April 28, 1992 (Gong192, 1694).

Attorney Park Chang-chul, et al., Counsel for the defendant-appellant

Attorney Kim Chang-soo, Counsel for the defendant-appellant

Seoul High Court Decision 91Na42816 delivered on February 13, 1992

The appeal is dismissed.

The costs of appeal are assessed against the plaintiff.

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

The intention of possession, which is the element of the acquisition by prescription, must be determined by the nature of the possessor’s possession right, but if the nature of the possessor’s possession right is not clear, the possessor is presumed to hold possession in a public performance with the intention of possession pursuant to Article 197(1) of the Civil Act. As such, the possessor is not actively liable to prove that the possessor is the possessor is the owner of the right, but is the other party who asserts that the possessor is the owner of the right. Here, the degree of proof regarding the possessor’s possession refers to the intention to exercise exclusive control, such as his own property by excluding the ownership of other party, such as superficies, right to lease on a deposit basis, and right to lease. In light of the fact that the owner is the owner’s intention to exercise exclusive control, such as superficies, right to lease, and right to lease, it is sufficient to prove objective circumstances that it cannot be deemed that the owner exercises exclusive control, such as his own property, or (see Supreme Court Decision 91Da25437, Nov. 26, 1991).

In the above purport, the court below recognized the fact that the defendant occupied each of the lands of this case as a road from November 18, 1958, and determined that the defendant's possession is presumed as an independent possession. As such, the court below was just in holding that the defendant's prescriptive acquisition has been completed as of November 18, 1978, and there is no error in the misapprehension of legal principles, such as theory of lawsuit, and each of the precedents of the lawsuit cannot be a proper precedent in this case as different cases

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

Justices Song Man-man (Presiding Justice)