The case holding that an indirect possession relationship exists solely on the fact that the State imposed and collected the indemnity pursuant to Article 51 of the former State Property Act to a person occupying forest land without permission may not be deemed to exist.

Articles 194 and 245(2) of the Civil Act; Article 51 of the former State Property Act (amended by Act No. 4698 of January 5, 1994)

Plaintiff

Korea

Chuncheon District Court Decision 2005Na2087 Decided December 20, 2005

The judgment of the court below is reversed, and the case is remanded to the Gangnam Branch Branch Court Panel Division.

We examine the grounds of appeal.

According to the records, there is no evidence to prove that the Defendant occupied the forest of this case after the registration of preservation of ownership of the forest of this case was completed on July 30, 1985. However, from around 1992, it can be known that the Nonparty, who occupied the forest of this case without permission, imposed and collected only the indemnity under Article 51 of the former State Property Act (amended by Act No. 4698 of Jan. 5, 1994) against the Nonparty.

Although the possession, which is the requirement for the prescriptive acquisition, includes not only the direct possession but also the indirect possession, in order to recognize the indirect possession, a certain legal relationship between the indirect possessor and the person who directly occupies is required, that is, the Defendant’s imposition and collection of the indemnity as above cannot be deemed to exist between the Nonparty and the indirect possession of the instant forest. In the instant case where there is no other evidence to deem that such relationship exists, the Defendant cannot be deemed to have an indirect possession of the instant forest.

Nevertheless, the court below determined that the defendant occupied the forest of this case by imposing and collecting indemnity from the non-party who occupied the forest of this case without permission after the registration of preservation of ownership of the forest of this case was completed on July 30, 1985. The court below erred in the misapprehension of facts against the rules of evidence or by misapprehending the legal principles on possession in the acquisition of prescription, which affected the conclusion of the judgment. The ground of appeal pointing this out is with merit.

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Hong-hoon (Presiding Justice)