The burden of proof of possession with respect to prescriptive acquisition

In the case of acquisition by prescription, if the existence or existence should be determined by the nature of the source of possessory right which objectively causes the acquisition by possession, or if its nature is not clear, the possessor shall be presumed to have possession with the intention of possession pursuant to Article 197(1) of the Civil Act. Therefore, the possessor does not bear the burden of proving that he/she is the possession with the intention of possession by himself/herself, and the possessor bears the burden of proving that he/she is another owner without the intention of possession by the possessor.

Articles 197 and 245 of the Civil Act

[Plaintiff-Appellant-Appellee] Plaintiff 1 and 1 other (Law Firm Sejong, Attorneys Park Jae-soo and 1 other, Counsel for plaintiff-appellant-appellee)

Plaintiff (Counterclaim Defendant) Attorney Lee Han-young, Counsel for the plaintiff-Counterclaim defendant)

Defendant-Counterclaim Plaintiff (Attorney Lee Jae-hwan, Counsel for the defendant-Counterclaim Plaintiff)

Seoul High Court Decision 87Na2849 (Main Office), 2850 (Counterclaim) Decided December 3, 1987

The appeal is dismissed.

The costs of appeal are assessed against the Defendant (Counterclaim Plaintiff).

As to the Defendant’s Attorney’s ground of appeal:

In full view of the adopted evidence, the court below recognized the fact that the non-party, who is the plaintiff's prior-party, resided in the beginning house of 113 square meters away from October 31, 1942 of the land in the dispute in this case, and occupied the above land portion and died on August 5, 1950, and the plaintiff, who is the south of the land, inherited his possessory right and continuously occupied it with his family while living together with his family. The court below did not err by violating the rules of evidence, such as the theory of lawsuit, nor by failing to exhaust all necessary deliberation, or by failing to exercise his right to ask for stone, etc.

In the case of the acquisition by prescription, the intention of possession, which is the requirement for the possession with intention of possession, should be determined by the nature of the source of possessor’s right which objectively causes the acquisition by possession, or if its nature is not clear, the possessor is presumed to have possession with the intention of possession pursuant to Article 197(1) of the Civil Act. Thus, the possessor is not responsible for proving that he is the possession with the nature of the source of possessor’s right, and the possessor does not bear the burden of proving that he is the possession with intention of possession with respect to the other party who asserts that he is the possession with no intention of possession by the possessor, and the possessor claims the right of possession, such as the purchase and sale or donation, and even if not recognized, the presumption of possession with intention of possession cannot be deemed to be reversed (see Supreme Court Decisions 82Da708, 709, Jul. 12, 1983;

On the premise of the opinion of the above precedents, the court below accepted the plaintiff's claim seeking the implementation of the procedure for the registration of ownership transfer with respect to the land occupied by the plaintiff, and rejected the defendant's counterclaim, there is no error of law such as misunderstanding of legal principles or omission of

The issue is groundless.

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Jae-sung (Presiding Justice)