A. In a case where a decision was made by a panel composed of three Supreme Court judges that changed the previous opinion of the Supreme Court, whether the ground for retrial constitutes “when the court does not constitute a court by law” (affirmative)

(b) Whether the peace and performance of the possession is lost solely on the fact that there was an objection from the person who asserts that the possession was illegal or a dispute over the ownership of the object in possession;

A. In a case where the previous Supreme Court’s opinion on the interpretation and application of laws is modified, it shall be tried by a collegiate body of two-thirds or more judges of all the Supreme Court judges. The judgment of this case is obvious that the decision of this case was rendered by a three-thirds judge of all the Supreme Court judges of all the Supreme Court judges of this case, which is a ground for retrial under Article 422(1)1 of the Civil Procedure Act, constitutes “when the court of adjudication is not constituted by law.”

B. Under Article 245 of the Civil Act, the so-called "successful possession" refers to a possession that does not use a force that is not legally acceptable for the possessor to acquire or hold such possession, and the term "public performance" refers to a possession that is not a possession. Thus, even if such possession has received an objection from a person who asserts that it is illegal or there was a dispute between the parties by pointing out the ownership of the object, it cannot be said that the peace and performance of such possession is lost immediately on its sole basis.

Article 422(1)1 of the Civil Procedure Act; Article 7(1) of the Court Organization Act; Article 245 of the Civil Act

Supreme Court Decision 4294DaDa153 delivered on January 18, 1962 delivered on November 18, 1962, 80Da2238 Delivered on January 27, 1981

Plaintiff (Re-Defendant)

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

Seoul Civil District Court Decision 80Na216 delivered on August 22, 1980

Supreme Court Decision 80Da2238 Delivered on January 27, 1981

1. Revocation of the original judgment;

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

1. The grounds for the request for retrial by the defendant are examined;

According to the reasoning of the original judgment, which is the object of this case, (Law No. 80Da2238, Jan. 27, 1981), the plaintiff (the defendant) purchased 48 square meters in this case and sought the removal of the part of the above ground building against the non-party 1, who was in possession of 2 square meters, around Aug. 1957, the plaintiff purchased 48 square meters in this case and sought the removal of that part of the above ground building, but the building was transferred to the defendant while the Dong refused to comply with this, which eventually led to the plaintiff's lawsuit against the defendant, the facts recognized by the court below are legally recognized, and the possessor is presumed to have occupied the building in a peaceful and public performance unless there are special circumstances. However, in this case, the presumption was broken due to the dispute by the plaintiff's request for removal from the original time. Accordingly, according to the records, the court below's rejection of the defendant's assertion that the above non-party 1's possession has succeeded to it.

Article 245 of the Civil Code provides that the possessor does not use a so-called so-called unconstitutional act which is not permissible under the law in acquiring or holding the possession. Thus, even if there was an objection or dispute over the ownership from the person who asserts the illegal possession, it does not lose the peace in possession. This opinion is that this decision is decided in the short-term 4287 Civilism189 decided November 6, 1954 and the 4294 Civilism153 decided January 18, 1962. Thus, the contents of the original judgment subject to retrial are cases where the above opinion on the interpretation and application of Article 245 of the Civil Code, which is decided in the previous Supreme Court decision, are changed. In such a case, the original judgment which is subject to retrial shall be decided by a panel of not less than three minutes of all the judges of the Supreme Court (see Article 7 (1) of the Court Organization Act). Therefore, it is clear that the original judgment constitutes three minutes or more of all the judges of the Supreme Court, which constitutes a ground for retrial.

2. Therefore, the defendant's grounds of appeal are examined.

According to the reasoning of the judgment of the court below, the court below acknowledged that the defendant's assertion that the prescriptive acquisition period as of October 1, 1956 was completed on the second half of the land was the fact that the non-party 1 purchased the building from the non-party 2 and occupied the building and its site and sold the building to the defendant on December 27, 1976. However, the court below rejected the defendant's claim for prescriptive acquisition on the ground that the non-party 1, who purchased 48 square meters of the site around August 1975 before the expiration of the prescriptive prescription period claimed by the defendant, purchased 48 square meters of the site and purchased the building from the non-party 1, who was the owner of the building in this case, but did not comply with this and transferred the building in this case to the defendant. Accordingly, the defendant's lawsuit against the defendant was brought.

However, Article 245 of the Civil Act provides, however, the so-called "a peaceful possession" refers to a possession that does not use a force that is not permissible under the law for the possessor to acquire or hold such possession, and the "public performance" refers to a possession that is not a possession. Thus, even if the possession was raised by the claimant as illegal or there was a dispute between the parties on the part of the owner of the object, such fact alone cannot be said to lose the peace and public performance of the possession. Thus, the judgment of the court below which held that the peace and public performance of the non-party 1's possession was lost due to the dispute as seen above is erroneous in the misapprehension of legal principles as to the peace and public performance of the possession. Therefore, it is reasonable to discuss this point.

3. Therefore, the judgment of the court below shall be reversed, and the case shall be remanded to the collegiate division of the Seoul Northern District Court. It is so decided as per Disposition by the assent of all participating Justices.

Justices Park So-young (Presiding Justice) Lee So-young (Presiding Justice) Lee So-young, Kim So-young, Lee So-young, Lee So-young, Lee So-young, Lee So-young, Lee So-young, Lee So-young