Where the presumption of autonomous possession by the State, etc. on the land incorporated into the road site is reversed;

Article 197(1) of the Civil Act

Plaintiff (Law Firm Sil, Attorneys Lee Sung-hoon et al., Counsel for the plaintiff-appellant)

Korea

Seoul Central District Court Decision 2012Na6799 Decided July 20, 2012

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

The grounds of appeal are examined.

If the nature of source of right of possession of real estate is not clear, the possessor is presumed to have occupied the land in good faith, peace, and openly with his/her intention. Such presumption also applies to the possession by the State or a local government, which is the managing body of the public cadastral record, of real estate. However, barring special circumstances, where the possessor proves that he/she occupied real estate owned by another person without permission despite the knowledge of the absence of such legal requirements, such as a juristic act which may cause the acquisition of ownership at the time of the commencement of possession, barring any special circumstance, the presumption of autonomous possession should be broken. The same applies to a case where the State, etc. arbitrarily incorporates private land into a road site without the title to possess the land. Therefore, there is no circumstance where it is difficult to expect the submission of documents related to the procedure for acquisition of the land, such as where the cadastral record, etc. on the land incorporated into a road site was destroyed by 6.25 pages or nonexistent, and the State, etc. is not required to lawfully obtain the ownership at the time of possession, and the circumstances, such as the possibility of acquisition of the land cannot be determined by the State’s.

However, according to the reasoning of the judgment below and the records, each of the lands of this case was assessed against the non-party who is the plaintiff in the Japanese colonial era, and the defendant had been occupying and managing each of the lands of this case since before around 1961, the defendant did not submit at all the material regarding the specific time of road construction, the circumstance of construction, or the material to deem that there is a possibility that the land of this case was legally incorporated into the road due to the land owner's consent to use, etc., and it cannot be confirmed that the time of commencement of possession or the period of possession. In full view of these facts, the defendant's presumption of possession is difficult to view that the land of this case was classified into the category of each of the land of this case on the old land cadastre restored in 1957, or that the land of this case was occupied and managed as the land of this case, or that there was no possibility that the defendant's possession of each of the land of this case can be viewed as a legitimate third party at the time of acquiring the ownership of each of the land of this case.

Upon examining the reasoning of the judgment below, the judgment of the court below is just and there is no error in the misapprehension of legal principles as to the presumption of possession with autonomy, contrary to the allegations in the grounds of appeal.

On the other hand, the court below rejected the defendant's assertion that each of the instant lands fell under the concentration of annexed facilities to the steel farmland and purchased it with the Defendant as a result of the enforcement of the Farmland Reform Act. In light of the relevant legal principles, the judgment of the court below is just and acceptable, and there is no violation of law of free evaluation of evidence in violation of logical and empirical rules.

Therefore, the appeal is dismissed by the assent of all participating Justices, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition.

Justices Kim Chang-suk (Presiding Justice)