[1] Whether the presumption of possession with autonomy is reversed solely on the ground that the State or a local government fails to submit documents on the procedure for acquiring land, claiming the completion of prescriptive acquisition (negative)

[2] The case holding that the presumption of possession of the above land cannot be reversed merely because the local government failed to submit documents on the procedure for acquiring the land incorporated into the road site

[1] Even if the local government or the state fails to submit documents concerning the procedure for acquiring the land for which the completion of the prescriptive acquisition is claimed, if it appears that the State or the local government can not be ruled out that the ownership was lawfully acquired by undergoing the procedure for acquiring the property for public use at the time of the commencement of possession, considering the situation and purpose of the possession, it is difficult to view that the State or the local government was able to prove that it was illegally occupied without permission, without being aware of such circumstance without the legal requirements

[2] The case holding that the presumption of autonomous possession of the above land cannot be reversed merely on the ground that the local government failed to submit the documents related to the procedure for subsequent acquisition of the above land, on the ground that it did not take the procedure for acquiring public property or incorporate the above land into the road site with a certain title that can occupy the above land, such as obtaining the owner's consent to use, in a case where the local government is found to have carried out the procedure for purchase, such as receiving a written consent to sell the land designated as the site of the road from the owner in the course of implementing the road construction project, but did not keep the related documents,

[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 Decision 2006Da28065 Decided February 8, 2007, Supreme Court Decision 2007Da42112 Decided December 27, 2007 (Gong2008Sang, 133), Supreme Court Decision 2009Da41687 Decided September 24, 2009

The World Climate Society Maintenance Foundation, a foundation (Attorney Jeon Young-young, Counsel for the defendant-appellant)

Cheongju-si (Law Firm Cheongung Law, Attorney Kim Tae-young, Counsel for the plaintiff-appellant)

Seoul High Court Decision 2009Na79677 decided April 1, 2010

Of the part against the Defendant in the lower judgment, the part concerning gold KRW 94,621,00 and the part concerning delay damages therefor, and the part ordering payment of money from April 18, 2008 with respect to possession of land No. 2 in the annexed Table 2 of the lower judgment, shall be reversed, and this part of the case shall be remanded to the Seoul High Court.

We examine the grounds of appeal.

1. If the nature of the source of possessory right of real estate is not clear, the possessor is presumed to have occupied the real estate in good faith, peace, and public performance with his own will under Article 197(1) of the Civil Act, and such presumption applies likewise to a case where the State or a local government, which is the managing body of the cadastral record, occupies the real estate owned by another person without permission despite the knowledge that the possessor does not meet the legal requirements such as a juristic act which may cause the acquisition of ownership at the time of the commencement of possession, barring special circumstances, the possessor shall be deemed not to have the intention to reject another person's ownership and not to possess it. Thus, the presumption of possession with intention to own is broken. However, even if a local government or a local government fails to submit documents concerning the procedure for the acquisition of land claiming the completion of the acquisition by prescription, it is difficult to see that the State or a local government has lawfully acquired the ownership of the real estate for public use with the knowledge of such circumstances without the legal requirements for the acquisition of ownership.

2. According to the reasoning of the judgment below, as to the defendant's defense that the prescriptive acquisition has been completed by the defendant who occupied each of the lands of this case for not less than 20 years, the court below rejected the defendant's decision that the defendant arbitrarily purchased or occupied the lands of this case on or around June 13, 1969, and completed construction of the road around November 9, 1969, by taking into account the evidence of the judgment below, it did not complete the registration of ownership transfer under the defendant's name; although the defendant received a written consent to purchase the land of this case (it appears to be a clerical error in the records of the second land of this case) from the plaintiff at the time of the road construction project, the defendant did not keep the related data, such as sales contract, receipts of sale price, etc., which would have to have been completed if the purchase procedure had been completed, the defendant did not own the land of this case, and decided that the land of this case had been occupied by consultation or possession without the defendant's defense.

3. In light of the above legal principles and records, the judgment of the court below as to the land No. 1 in this case without any particular proof as to the procedure for acquiring public property or the owner's consent to use as provided by law is just, and there is no violation of the rules of evidence as otherwise alleged in the ground of appeal, but the judgment of the court below as to the land No. 2 in this case shall

In other words, upon examining the reasoning of the judgment below in light of the records, the above road construction business was conducted on May 13, 1969, and the defendant received a written consent and a certificate of personal seal from the plaintiff on May 13, 1969 to sell the land No. 2 of this case with the defendant's decision price, and also received a certificate of personal seal impression (the end of August 1969) from the plaintiff's responsible authority to provide the documents necessary for the transfer of ownership within the effective period of the certificate of personal seal impression. At that time, the defendant decided the sale price of the land No. 2 of this case as KRW 834,700, and the defendant started the road construction on June 13, 1969 and completed the construction of the section including the land No. 2 of this case on November 9, 1969. Further, the plaintiff did not raise any objection against the possibility that the land of this case was acquired by the defendant's possession of the land of this case or its right to use the land of this case.

Nevertheless, the judgment of the court below which rejected the defendant's assertion on the prescriptive acquisition of this part on the ground that the defendant illegally occupied the land No. 2 of this case without permission is erroneous in the misapprehension of the rules of evidence or in the misapprehension of the legal principle

4. Therefore, among the part against the defendant in the judgment of the court below, the part ordering payment of the amount from April 18, 2008 with respect to unjust enrichment of 94,621,000 won and delay damages on the land of 2 and possession of land of 2 shall be reversed, and this part of the case shall be remanded to the court below for a new trial and determination, and the remaining appeal shall be dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jeon Soo-ahn (Presiding Justice)