In a case where a local government or a state without title incorporates a private land into a road site, whether the presumption of possession with autonomy is broken (affirmative)

In a case where it is proved that the possessor illegally occupies the real estate owned by another person with the knowledge of the absence of such legal requirements as to the acquisition of ownership at the time of the commencement of possession, barring any special circumstance, the possessor shall not have an intention to reject the ownership of another person and hold possession. Thus, the presumption of possession with the intention to own is broken, and the presumption of possession is also broken, and even in a case where the local government or the state without a specific title, such as taking the procedure for the acquisition of public property under the Local Finance Act or the State Property Act, such as the payment of its own shares or the collection of contributions, or incorporatings the private land into the road site without a specific title that can occupy the land, such as obtaining the consent of the owner, the presumption of

Articles 197(1) and 245(1) of the Civil Act

Supreme Court en banc Decision 95Da28625 delivered on August 21, 1997 (Gong1997Ha, 2501) Supreme Court Decision 97Da30349 delivered on May 29, 1998 (Gong1998Ha, 1749) Supreme Court Decision 98Da29834 delivered on March 12, 199 (Gong199Sang, 655)

Plaintiff (Attorney Kim Tae-tae, Counsel for the plaintiff-appellant)

Ulsan Metropolitan City (Law Firm International, Attorneys Ha Man-young, Counsel for the defendant-appellant)

Busan High Court Decision 2000Na5152 delivered on October 18, 2000

The judgment below is reversed, and the case is remanded to Busan High Court.

We examine the grounds of appeal.

1. The lower court determined that: (a) the Plaintiff and its siblings were originally owned by Nonparty 1; (b) the Plaintiff and its siblings jointly inherited Nonparty 2, Nonparty 3, and Nonparty 4, in sequence, through an agreement on inheritance division on July 2, 1999; (c) the land category of the instant land was changed to the road on October 14, 1919; (d) the land category was incorporated into the road site connected to the Busan Highnam-do, Busan High-do; and (e) the Chosundo-do-do-do-do-do-do-do-do-do-si-do-do-do-do-si-do-si-si-si-si-si-si-si-si-si-si-si-si-si-si-si-si-si-si-si-si-si-si-si-si-do-si-si-do-si (hereinafter referred to as the “instant land”); and (e) the State-owned-do-do-do-owned land was recognized as the Plaintiff’s-owned land and owned.

2. However, we cannot agree with the judgment of the court below that the defendant's possession of the land in this case by the state or the ship of the Republic of Korea, which succeeded to such possession, is autonomous possession for the following reasons

In a case where it is proved that the possessor occupied the real estate owned by another person without permission knowing the existence of the legal act or any other legal requirements that may cause the acquisition of ownership at the time of the commencement of possession without permission, barring any special circumstance, the possessor shall not be deemed to have an intention to reject the ownership of another person and hold possession (see, e.g., Supreme Court en banc Decision 95Da28625, Aug. 21, 1997). As such, the presumption of possession with the intention to own is broken (see, e.g., Supreme Court en banc Decision 95Da28625, Aug. 21, 1997). Furthermore, even in a case where the local government or the State takes the procedure for acquiring the public property prescribed in the Local Finance Act or the State Property Act, or incorporates the private land into the road site without a specific title, such as obtaining the approval of the owner’s use, the presumption of autonomous possession is broken (see, e.g., Supreme Court Decision 9

If so, the court below should have deliberated whether the Korean Government Department of Joseon incorporated the land of this case into the road site and obtained the approval of the owner of the land for use as a road under the former State Property Act, etc. (Law No. 413, Apr. 1, 1937) of Japan, which was enforced in the Republic of Korea since April 1, 1937 under the State Property Act (Ordinance No. 266, Aug. 14, 1936) at the time of purchase, donation, etc. (No. 413, 1921).

Nevertheless, the court below did not examine the above circumstances, and judged that the acquisition by prescription was completed by presumption of possession by the country or the ship of the Republic of Korea who succeeded to the possession of the defendant as an independent possession is an unlawful act which affected the conclusion of the judgment by misunderstanding the legal principles as to the requirements for the possession of real estate during the prescription period. The ground of appeal assigning this error is with merit.

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Seo-sung (Presiding Justice)