The burden of proof of “the intention of possession”, which is the requirement for prescriptive acquisition.

In a case of prescriptive acquisition, an intention of possession, which is the requirement for an independent possession, should be objectively determined by the nature of the possessory right, or if the nature of the possessor’s right is unclear, the burden of proof exists on the other party who asserts that the possessor’s possession is the other party to the claim that the possessor is the possession. Therefore, even if the possessor is not recognized as an independent possessor, such as sale and donation, as alleged by the possessor, it cannot be deemed that the presumption of an independent possession is reversed or that the possession is

Articles 197(1) and 245 of the Civil Act

Supreme Court en banc Decision 82Da708, 709, 82Meu1792, 1793 Decided July 12, 1983, Supreme Court Decision 83Meu87,858 Decided September 13, 1983, Supreme Court Decision 83Meu513 Decided September 27, 1983

Plaintiff 1 and one other

Defendant-Appellant (Attorney Cho Jae-soo, Counsel for defendant-appellant)

Seoul Civil District Court Decision 82Na531 delivered on December 1, 1982

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

The defendant's attorney's second ground of appeal is examined.

1. According to the reasoning of the lower judgment, the lower court: (a) based on the evidence adopted by it, found the above 35 square meters in Seoul Jongno-gu ( Address 1 omitted) under Plaintiff 1’s name; (b) the above 43 square meters in the same place ( Address 2 omitted) were completed for the registration of ownership transfer in Plaintiff 2; and (c) the Defendant owned the above building site and the coagu and jugu 12 square meters in sap and ice house; and (d) actually occupied the above building and its site by owning 12 square meters in 12 square meters in sap and ice house; (f) the portion of the above building indicated in the attached drawing(g) and the title of 17 square meters in f.m. on the above ( Address 1 omitted); and (f) the part of the above building and the part of the building that the Defendant purchased from the above 19th in f.m. and 0.7 p.m., the part of the above building site, which the Defendant allegedly purchased the above 15th in 7th of the building site.

2. However, the intention of possession, which is the requirement for the acquisition by prescription, should be objectively determined by the nature of the source of possession right which is the ground for the acquisition by prescription. However, if the nature of the source of possession right is not clear, the possessor is presumed to have possession with the intention of possession under Article 197(1) of the Civil Act. Thus, the possessor does not bear the burden of proving that he/she is the possession by himself/herself, and the other party who asserts that he/she is the possession without the intention of possession, bears the burden of proving that he/she is the possession by intention of possession. Therefore, in cases where the possessor asserts the title of possession such as the purchase by himself/herself, but this is not recognized, the presumption of possession by intention of possession cannot be reversed or that the source of possession by nature of the source of possession right is an owner by virtue of the above reason, unless the possessor bears the burden of proof as to the source of possession by intention of possession by himself/herself, and thus, it cannot be accepted by the lower court en banc Decision 2003Da1383839,79, Jul. 138, 19839.

3. Therefore, without examining the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the Panel Division of the Seoul Civil Procedure District Court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating judges.

Justices Lee Jong-soo (Presiding Justice)