(a) The burden of proving the possession with respect to the prescriptive acquisition;

B. Whether the presumption of possession with independence can be reversed solely on the ground that the possessor deniess the title of the possession as alleged by the possessor

A. The intention of possession, which is the content of an autonomous possession, should be determined depending on the nature of the source of possessory right. However, if the nature of possession is not clear, the possessor is presumed to have occupied in good faith, peace, and public performance pursuant to Article 197(1) of the Civil Act. Thus, the possessor cannot be deemed to be actively responsible for proving that the source of possessory right is an autonomous possession, and the possessor is responsible for proving it to the other party who asserts that the possession is the owner.

B. Even in a case where the possessor asserts the right of possession, such as the purchase and sale or donation, but this is not recognized, the presumption of possession with the sole reason that the possessor is not recognized as the possessor cannot be deemed to be reversed and the possession with the intention to hold it.

Articles 197 and 245 of the Civil Act

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

[Judgment of the court below]

Defendant (Attorney Park Jong-chul, Counsel for the defendant-appellant)

Seoul Central District Court Decision 83Na107 delivered on October 19, 1983

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

We examine the grounds of appeal.

1. The intention of possession, which is the content of possession with the intention of possession, should be determined according to the nature of the source of possession right. 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 in good faith, peace, and public performance pursuant to Article 197(1) of the Civil Act. Thus, the possessor is not actively responsible for proving that the source of possession right is possession with the intention of possession, and the possessor is responsible for proving it to the other party who asserts that the possession is the possession with the intention of possession with the intention of possession. This legal principle is the opinion of the party member that the presumption of possession with the reason that the possessor is not recognized as the source of possession with the intention of possession because it does not differ even if the possessor asserts the source of possession right, such as the sale and purchase, but is not recognized. (See Supreme Court Decision 82Da708, 709, 82Meu1792,1793, Sept. 12, 1983; and etc.)

2. According to the reasoning of the judgment below, the court below rejected the defendant's assertion as to the prescriptive acquisition by prescription, since it is evident by the above-mentioned evidence that the non-party 1 purchased the building of this case from the non-party 2 on October 1, 1956 and occupied the building and its site, and thereafter sold it to the defendant on December 27, 1976, and thereafter, the defendant occupied it since then, it was acknowledged that the building was occupied by the defendant, but the building was invaded by the land in Gangnam-gu Seoul Special Metropolitan City from the beginning of the building site and was illegally occupied as the site, and as a result, it was found that the above non-party 1 or the defendant had the intention to own the land in light of the nature of the title of possession, and in this case, it cannot be viewed that the owner had the intention to own it, or if it did not commence possession as the intention to own it with a new title, it does not change its nature, and there was no evidence

However, as mentioned above, if it is acknowledged that the Defendant occupied the instant real estate during the period of original adjudication, the Defendant is presumed to have occupied the instant real estate in good faith, peace, and public performance with the intention of possession, and thus, the Defendant is not liable to prove the fact that there is no burden of proof, and the Defendant is not aware of the fact that there is no cause of possession without the burden of proof. Thus, the source of possession right cannot be deemed to be the possession with intention

3. Therefore, the judgment of the court below is erroneous in the misapprehension of legal principles as to the prescriptive acquisition, which affected the conclusion of the judgment by interpreting the burden of proof as to the autonomous possession, against the Supreme Court precedents and precedents. Therefore, the appeal against this is justified.

Therefore, the judgment of the court below shall be reversed and the case shall be remanded to the Panel Division of the Seoul Civil Procedure District Court. It is so decided as per Disposition by the assent of all Justices who reviewed the appeal.

Justices Lee Il-young (Presiding Justice)