Where the conclusion of a State property loan contract or the payment of occupation fees after the completion of acquisition by prescription can be deemed as the expression of intent to waive prescription benefits.

Articles 184 and 245(1) of the Civil Act

Supreme Court Decision 94Da32511 delivered on November 22, 1994 (Gong1995Sang, 77) Supreme Court Decision 97Da53304 delivered on March 10, 1998 (Gong1998Sang, 991)

Plaintiff 1 and five others (Law Firm Geum River, Attorneys Kim Won-tae et al., Counsel for the plaintiff-appellant)

Korea

Changwon District Court Decision 2006Na1064 decided August 31, 2006

The part of the judgment of the court below against Plaintiff 2, 3, 4, 5, and 6 with respect to the 3,921 square meters in Changwon-si, Changwon-si (number 1 omitted), shall be reversed, and this part of the case shall be remanded to the Panel Division of the Seoul District Court. The remaining appeals by Plaintiff 1 and the remaining appeals by Plaintiffs 2, 3, 4, 5, and 6 shall be dismissed, respectively. The costs of appeal by Plaintiff 1 shall be borne by Plaintiff 1.

We examine the grounds of appeal.

1. As to the ground of appeal on the waiver of prescription benefit

A. Although it is difficult to view that the fact that the possession of state property and the completion of the acquisition by prescription concluded with the state property and the payment of rent was made by itself as an active declaration of intent to waive the benefits of the completion of the acquisition by prescription, it is reasonable to deem that such loan contract was concluded several times without any defect, or that if the loan contract was concluded on several occasions without simply concluding the loan contract and the payment was made under the pretext of compensation, it would have been made actively expressed that the State recognized the ownership of the State and renounced the benefits of the completion of the acquisition by prescription (see, e.g., Supreme Court Decisions 94Da32511, Nov. 22, 1994; 97Da5304, Mar. 10, 1998).

B. After compiling the adopted evidence, the lower court acknowledged the facts as indicated in its reasoning. On November 16, 1971, the lower court determined that: (a) Nonparty 1 acquired from Nonparty 2 on November 16, 1971, the 3,921m2 (hereinafter “instant land”); and (b) occupied Nonparty 1’s right to claim for ownership transfer registration on the ground of the completion of the prescriptive acquisition based on the Plaintiff’s inheritance shares on November 16, 1991, by acquiring the 3,921m2 (hereinafter “instant land”); and (c) Nonparty 1 continuously occupied Nonparty 1’s possession on March 5, 1983.

Furthermore, with respect to the defendant's defense that the plaintiffs renounced the prescription interest, the court below rejected the defendant's claim as to the above land of this case on the ground that, after the death of the non-party 1, the plaintiff 1 submitted a written waiver that the plaintiff 1 would waive the prescription interest under the Civil Act with respect to the land of this case to the public officials belonging to the Changwon viewing who had been delegated by the defendant around June 1998, and entered into a loan agreement with the original Changwon market during the period from January 1, 1998 to December 31, 200. The court below rejected the defendant's claim as to the above land of this case on the ground that it was reasonable to deem that the plaintiff 1 renounced the right to claim ownership transfer registration of the land of this case.

C. In light of the above legal principles and records, the court below's decision that the plaintiff 1 renounced the prescription benefit of the land of this case is just and acceptable, and there is no violation of the rules of evidence or misapprehension of legal principles as to mistake of facts or waiver of prescription benefit due to incomplete hearing, as alleged in the grounds of appeal.

However, the lower court’s decision that concluded that Plaintiff 2, 3, 4, 5, and 6, who is the rest of the Plaintiffs, renounced the statute of limitations interest on the instant land 1 on the ground that it did not specifically raise an objection against the measures such as concluding a State-owned property loan agreement by Plaintiff 1 is difficult to accept.

The waiver of the prescription interest refers to an active and unilateral expression of intent to not receive legal interest arising from the completion of prescription. According to the records, it can be known that the plaintiff 1 prepared a written waiver of the land of this case and entered into a State property loan agreement on June 1998 that the plaintiff 2, 3, 4, 5, and 6 were 26 to 36 years of age. However, there is no evidence to prove that the above plaintiffs 1 delegated the plaintiff 1 to enter into a State property loan agreement with respect to the share acquired by the right to claim ownership transfer registration of this case on behalf of the plaintiff 1, or that the plaintiff 1 renounced his/her share.

Nevertheless, the court below erred by failing to exhaust all necessary deliberations or by misapprehending the legal principles on the waiver of prescription benefits, which affected the conclusion of the judgment, that the court below concluded that Plaintiff 2, 3, 4, 5, and 6 renounced the prescription benefits only based on the circumstances in its reasoning.

2. As to the ground of appeal on possession

The court below acknowledged the facts in its reasoning based on its adopted evidence, and rejected the plaintiffs' assertion on the land in this case 2 on the ground that it is difficult to view that the non-party 1, the former occupant, or the plaintiffs occupied the forest land of 314mm2 (hereinafter "the land of this case") in Changwon-si, Changwon-si during the possession period of the plaintiffs' assertion. In light of the records, the court below rejected the plaintiffs' assertion on the prescriptive acquisition of the land of this case 2, and there is no error of law such as misconception of facts due to violation of the rules of evidence, as argued in the Grounds for

3. Therefore, the part of the judgment of the court below against plaintiffs 2, 3, 4, 5, and 6 as to the land of this case is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. The appeal by plaintiffs 1 and the remaining appeals by plaintiffs 2, 3, 4, 5, and 6 are dismissed, respectively. The costs of appeal by plaintiffs 1 are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Yong-dam (Presiding Justice)