In case where a land substitution was made while a specific part of the previous land was occupied, whether the identity of the land subject to possession is recognized before and after the designation of the land substitution (negative)

In a case where a replotting disposition is taken, even if it is a land substitution, the previous land is changed due to the land substitution. As such, in a case where a land substitution is designated prior to the completion of prescriptive acquisition and the land substitution is finalized during the possession of some specific portions of the previous land, barring special circumstances, it cannot be deemed that the occupant of the previous specific portion of the land occupies the relevant specific portion on the land substitution or the land substitution even before the land substitution is designated, unless there are special circumstances.

Article 245 of the Civil Act

Supreme Court Decision 92Da30306 delivered on May 14, 1993 (Gong1993Ha, 1695), Supreme Court Decision 95Da15742, 15759 delivered on July 25, 1995 (Gong1995Ha, 2954), Supreme Court Decision 94Da53785 delivered on November 29, 1996 (Gong197Sang, 151), Supreme Court Decision 97Da53823 delivered on March 27, 1998 (Gong198Sang, 1194)

Plaintiff

Defendant (Attorney Ansan-gu et al., Counsel for defendant-appellee)

Seoul District Court Decision 2002Na13361 delivered on November 22, 2002

The appeal is dismissed. The costs of appeal are assessed against the defendant.

We examine the grounds of appeal.

In a case where a replotting disposition is taken, the previous land is changed to the land’s cadastral, shape, and location of the entire land due to replotting. Thus, in a case where a land substitution is designated before the completion of prescriptive acquisition while a part of the previous land was occupied and the land substitution is finalized, it cannot be deemed that the occupant of the previous land occupied the relevant specific part on the land’s planned land substitution or substituted land even before the land substitution is designated, unless there are special circumstances (see, e.g., Supreme Court Decisions 92Da30306, May 14, 1993; 95Da15742, 95Da15759, Jul. 25, 1995; 94Da53785, Nov. 29, 196).

Examining the evidence admitted by the court below in light of the records, the court below was just in rejecting the defendant's assertion that the defendant occupied the occupied part of this case from December 26, 197. On January 11, 1983, the designation of the land substitution was made to substitute 41 square meters with respect to the land purchased by the plaintiff from Eunpyeong-gu Seoul Special Metropolitan City ( Address 1 omitted) and the occupied part of this case was included in the above land substitution. Since the specific part of the previous land cannot be deemed to be the same before and after the designation of the land substitution, the period for the acquisition by prescription of the defendant was newly run as the starting point of the above designation date ( January 11, 1983), since the defendant acquired by prescription the occupied part of this case, the plaintiff's claim for delivery of the occupied part of this case and removal of the above land cannot be permitted, and contrary to the allegations in the grounds of appeal, there were no errors in the misapprehension of legal principles as to the validity of the land substitution.

Supreme Court Decision 97Da55515 Decided May 15, 1998 cited by the Defendant is not appropriate to apply this case to this case, since the possessor who has occupied all the previous land continues to possess all the reserved land after the designation of the reserved land for replotting.

In addition, the defendant's remaining grounds of appeal are nothing more than criticism of the court below's additional and family judgment, and it cannot be accepted.

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 Seo-sung (Presiding Justice)