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)

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

Supreme Court en banc Decision 95Da28625 Decided August 21, 1997 (Gong1997Ha, 2501) Supreme Court Decision 97Da30349 Decided May 29, 1998 (Gong1998Ha, 1749) Supreme Court Decision 2009Da1944 Decided June 11, 2009

Plaintiff (Attorney Park Jong-dae, Counsel for the plaintiff-appellant)

Korea

Suwon District Court Decision 2009Na9154 decided September 30, 2009

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

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

According to the reasoning of the judgment below, on October 21, 191, the old land cadastre of 1,761 square meters (hereinafter “land before subdivision”) was restored to the land of this case on October 21, 191. The court below determined that even if the above land was divided into the land of this case on November 30, 195, the land of this case and the land category was altered to the road of this case on November 30, 1954, the Defendant could not be deemed to possess and manage the land of this case on its own due to the death of the above non-party 1 around 1949, and the cadastral record on the land before subdivision was destroyed due to the six and twenty five accidents, and the land of this case was removed to the land of this case on November 30, 195, it was hard to conclude that the Defendant occupied the land of this case on the ground that the land of this case was occupied by the owner of the road of this case without permission of this case, and that the land of this case was occupied by the Defendant.

However, we cannot agree with the judgment of the court below that the presumption of possession with autonomy cannot be deemed to have been reversed 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. Thus, the presumption of possession with the intention to own is broken (see Supreme Court en banc Decision 95Da28625 delivered on August 21, 1997). Thus, the presumption of the possession with the intention to own is broken (see Supreme Court Decision 97Da30349 delivered on May 29, 198; Supreme Court Decision 2009Da19449 delivered on June 11, 209, etc.). The presumption of the autonomous possession of private land is also broken where the local government or the State without the right to possess the land as a road site, such as taking the procedure for the acquisition of the public property under the Local Finance Act or the State Property Act, etc. (see, e., Supreme Court Decision 97Da.).

According to the records, the above land cadastre on the land of this case is indicated as the owner of the land of this case as the non-party 1, who is the owner of the land of this case. In addition, the statement "unregistered as of October 25, 1975," and the new land cadastre of this case prepared on September 22, 1978 thereafter, the owner's column is vacant column. On April 21, 1995, the name Non-party 2 was stated in the owner column, and on October 7, 1996, the state was stated as the owner. On the records of this case, it cannot be found that the defendant had taken the procedure for acquiring the land of this case as of October 5, 1954 when occupying the land of this case as the road of this case, and there is no sufficient evidence to view that the defendant had occupied the land of this case without being aware that he had possession of the land of this case, and there was no legitimate title to the land of this case.

Nevertheless, the court below judged that the acquisition by prescription was completed by estimating the defendant's possession as possession independently. The court below erred by misapprehending the legal principles on the presumption of possession by prescription of real estate, which affected the conclusion of the judgment.

Therefore, the judgment below is reversed, and the case is 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 on the bench.

Justices Jeon Soo-ahn (Presiding Justice)