[1] In a case where the nature of the source of possessory right of real estate is not clear, whether it is presumed to be possession independently pursuant to Article 197(1) of the Civil Act (affirmative)

[2] The case holding that in a case where Gap's repair association, a telegraph of the Korea Rural Community Corporation, installed a reservoir on the land owned by Eul, and the Korea Rural Community Corporation sought implementation of the procedure for the registration of transfer of ownership based on the completion of the prescription for possession of the above land against Eul corporation, the presumption of possession of the above land by the Korea Rural Community Corporation was reversed in light of the following: (a) cadastral record on the above land exists and there is no indication to support the acquisition of ownership by the

[1] Articles 197(1) and 245(1) of the Civil Act / [2] Articles 197(1) and 245(1) of the Civil Act

[1] Supreme Court en banc Decision 95Da28625 Decided August 21, 1997 (Gong1997Ha, 2501) Supreme Court Decision 2009Da99143 Decided November 24, 201 (Gong2012Sang, 21)

Korea Rural Community Corporation (Attorney Park Jong-soo, Counsel for the plaintiff-appellant)

Seoul Central Institute of Education (Law Firm TELBS, Attorneys Lee Jae-in et al., Counsel for the plaintiff-appellant)

Gwangju District Court Decision 2017Na61507 Decided April 6, 2018

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

The grounds of appeal are examined.

1. If the nature of the source of possessory right of real estate is not clear, the possessor is presumed to possess it with his/her intention pursuant to Article 197(1) of the Civil Act. However, in cases where it is proved that the possessor occupied real estate owned by another person without permission despite the knowledge that it does not meet such legal requirements without permission, barring any special circumstances, the possessor does not reject another person’s ownership and have an intention to possess it. Thus, the presumption of possession with an intention to own is broken (see, e.g., Supreme Court en banc Decision 95Da28625, Aug. 21, 1997).

However, even if the State, a local government, or a public institution (hereinafter “State, etc.”) fails to submit a document regarding the fact that the acquisition procedure of the relevant land was conducted, it cannot be readily concluded that the State, etc. occupied the land with the knowledge that the cadastral record, etc. on the land was destroyed by a disturbance 6.25 or no other reason exists and thus, was registered as the owner in the cadastral record, etc.... In light of the purpose and purpose of the occupation, if it appears that the possibility that the State, etc. lawfully acquired the ownership after undergoing the procedure for acquiring public property at the time of the commencement of possession cannot be ruled out, it is difficult to deem that the State, etc. was aware of such circumstance without the legal requirements for acquiring the ownership, and it does not reverse the presumption of autonomous possession by the State, etc. on the sole basis of the fact that the State, etc. did not submit a document regarding the procedure for acquiring the ownership. However, the possibility of acquiring the ownership pursuant to the lawful procedure should not be recognized by the State, etc. on the ground that the State, etc. did not lose the legal requirements for acquiring the ownership (see, etc.).

2. The lower court, citing the first instance judgment, rejected the Plaintiff’s assertion seeking the implementation of the procedure for ownership transfer registration on the instant land due to the completion of the statute of limitations for possession.

A. On June 9, 1947, the land of this case was registered for ownership transfer in the name of the Central Institute of Private Teaching, a foundation incorporated by the Defendant for the overall use of the Defendant, on January 17, 1976. The ○○ System commenced in 1954 by the △△ Repair Association and completed in 1955. The land of this case was under the surface of the ○○ System or is part of the bank.

B. The cadastral record on the instant land remains intact as it is and there is no indication to support the Plaintiff’s acquisition of ownership in the cadastral record. From 1954 to 1956, the Plaintiff asserted only that the Plaintiff purchased the instant land from the Defendant and installed ○○ System and occupied the instant land, but did not submit objective data supporting the fact that the procedure for acquiring the instant land was taken. The land purchase price for the instant land was not indicated in the agricultural infrastructure register as to ○○ System.

In light of these circumstances, it is reasonable to view that the presumption that the Plaintiff occupied the instant land with its intention to own it was reversed.

3. Examining the reasoning of the lower judgment in light of the record, the lower judgment is justifiable. In so determining, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or by misapprehending the legal doctrine on autonomous possession or prescriptive acquisition

4. The Plaintiff’s appeal is without merit, 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 on the bench.

Justices Lee Dong-won (Presiding Justice)