Whether there is intention to own the land in possession of the purchaser of the land who is believed to be the subject matter of the sale by taking over other land than the subject matter of the sale.

Since the intention of possession, which is the requisite for the possession by prescription, is objectively determined by the nature of the source of possessory right, which is the cause of the acquisition by possession, if the seller delivers the land due to the sale, the seller should be deemed to have the intention to own the land actually occupied by the buyer who is delivered the land, even if the land was delivered other than the object of sale by mistake.

Article 245(1) of the Civil Act

Plaintiff

Defendant Kim-he, Counsel for the defendant-appellant

Busan District Court Decision 82Na1087 delivered on February 22, 1983

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

According to the reasoning of the judgment below, the court below rejected the defendant's defense on December 15, 1918, which determined that the defendant purchased the land of this case from the above non-party 1 at KRW 19,00,000 and KRW 647 on the land of this case, which was the land of this case, and was occupied by cultivating it until the closing of the fact-finding proceedings of this case, which was more than 20 years after being delivered the land of this case, and that the defendant purchased the land of this case from the above non-party 1 at KRW 647 on December 15, 1918 and entrusted the ownership transfer registration to the non-party 2 at KRW 19,00,000, and it did not purchase the land of this case, since it did not purchase the land of this case, and even if the defendant acquired the land of this case by mistake and acquired it on the land of this case, it cannot be viewed that the defendant acquired the intention of this case by prescription.

However, since the intention of possession, which is the requisite for the acquisition by prescription, is objectively determined by the nature of the source of possessor's right, which is the cause of possession, in case where the seller delivers the land which is not the object of sale, even if the seller caused a mistake and delivered the land which is not the object of sale, so long as the buyer who takes over the land believed that it is the object of sale and takes possession of it, the purchaser of the land shall be deemed to have the intention to own the land actually acquired. According to the facts duly established by the court below in this case, according to the facts duly established by the court below, the non-party 1 delivered the land of this case, which is the adjacent land, to the defendant, by mistake in selling the land of this case and delivering it accordingly, the defendant believed that the land is the object of purchase by the same non-party and occupied it in the belief that it is the object of possession by mistake. Accordingly, the defendant should be deemed that the defendant had no intention to own the land of this case, and thus, the court below rejected the defendant's objection to the acquisition by prescription.

Therefore, the judgment of the court below is reversed, and the case is remanded to the Busan District Court Panel Division for a new trial. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Young-ju (Presiding Justice)