The nature of possession by the owner of a building on the adjoining land due to the breach in a case where the building was constructed on the land owned by him/her beyond a reasonable degree of error in construction, which would normally have been affected by the infringement (=the possession)

It is reasonable to view that the owner of a building knew at the time of the construction that the building was built to the extent that it was caused by mistake that part of the adjoining land was infringed on by mistake, so long as it was caused by mistake, it cannot be readily concluded that the possession of the adjoining land is not based on the intention of ownership. However, in general, in a case where a person who intends to build a new building on his own land intends to build a new building on his own land after checking in advance the location and area of the site by drawing, etc. the location and area of the site, which the building is located, is usually going back to the construction. Thus, in a case where the area of the building in question exceeds the ordinarily permissible construction level and exceeds the considerable degree, it is reasonable to view that the owner of the building was aware that the building in question was built to the extent that the building in question was infringed on by the neighboring land, and therefore, the occupation of the adjoining land

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

Supreme Court Decision 96Da41335 delivered on January 24, 1997 (Gong1997Sang, 644) Supreme Court Decision 98Da32878 delivered on November 10, 1998 (Gong1998Ha, 2843) 98Da62046 delivered on May 25, 199 (Gong199Ha, 1258)

Plaintiff (Counterclaim Defendant) (Attorney Lee Yong-soo, Counsel for defendant-appellant)

Defendant-Counterclaim Plaintiff (Attorney Cho Dai-hwan et al., Counsel for the plaintiff-appellant)

Changwon District Court Decision 99Na8180, 8197, 13243 delivered on June 30, 200

The judgment below is reversed. The case is remanded to the Changwon District Court Panel Division.

The grounds of appeal are examined.

1. According to the reasoning of the lower judgment, the lower court: (a) purchased 140/180 shares in the land owned by Nonparty 1 on December 23, 197, 197, which were newly owned by the Defendant on the 6th anniversary of the above construction site; and (b) purchased 140/180 shares in the land owned by Nonparty 1 on two occasions after the purchase of 59 square meters in common; and (c) purchased 6/180 shares in the land owned by the Defendant on the 6th anniversary of the above construction site, which was owned by the Defendant’s building on the 9th anniversary of the above new construction of the building site (hereinafter “the instant building site”); and (d) purchased 6/1,000 of the building site on the 9th anniversary of the above construction site; and (e) purchased 6/1,000 of the building site on the 9th anniversary of the building site; and (e) owned 7/1,000 square meters of the ownership of the instant building site on the 4th of the same month.

2. On the ground that the construction of a building on one's own land did not accurately verify the boundary line with the adjoining land, and even if the building caused part of the adjoining land due to an error, it cannot be readily concluded that the occupancy of the adjoining land is not based on the intention of ownership. However, as a general rule, a person who intends to construct a new building on one's own land who intends to build a new building on one's own land by means of drawing, etc. the location and area of the site part of the building site is confirmed in advance and proceed to the construction. Thus, if the area of the building in question exceeds the ordinarily permissible construction error and exceeds the reasonable degree, it is reasonable to view that the owner of the building in question was aware at the time of the construction that the building in question is invaded with the adjoining land. Accordingly, the occupancy of the adjoining land due to the intrusion cannot be deemed as a possession with the intention of ownership in view of the nature of the title (see, e.g., Supreme Court Decision 96Da4135, Jan. 24, 1997).

However, according to the records, the non-party 1 constructed two houses and stores with the concrete brick roof with the floor area of 52.46 square meters per floor on the land site in Dong-gu, Dong-si, ( Address 3 omitted), which is a mere 46 square meters, and as a result, the above building is owned by the non-party 2, 3.3 square meters, 2 square meters and 7 square meters ( Address 5 omitted), 19 square meters and 10 square meters among the land owned by the non-party 2, and 19 square meters and 19 square meters among the land owned by the non-party 10 square meters in Dong-si and Dong-si, ( Address 3 omitted), and it is reasonable to view that the above building had already been constructed with the non-party 1's adjacent building's adjacent building's adjacent building's adjacent building's adjacent building's adjacent building's area and the building's floor area and the building's adjacent building's adjacent building's adjacent building's adjacent building's area.

Nevertheless, on June 1, 1990, on the premise that the non-party 1, among the lands before the above division, was occupied by the intention to own the above Y, and the caused part, the court below determined that the acquisition by prescription of possession by the defendant who succeeded to the possession of the non-party 1 among the site of this case (the land before the above division was divided into the site of this case and the land of this case (the address 2 omitted), which was 20 years from the date of possession, was completed on June 1, 1990. The former became the sole owner, and the former became the owner of the plaintiff) was completed. Accordingly, the court below erred by failing to sufficiently examine the intention of the non-party 1, or by misapprehending the legal principles on the autonomous possession, which affected the conclusion of the judgment. The part of the grounds of appeal pointing this out is

3. Therefore, without examining the remaining grounds of appeal, the judgment of the court below shall be reversed, and the case shall be remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Yong-woo (Presiding Justice)