Where a person who has received and occupied land from another person under a contract, such as sale, exchange, etc., becomes aware that the contract is null and void, whether it can not be regarded as possession independently.

If a person who takes over land from another person under a contract, such as sale and purchase or exchange, becomes aware that the transaction or exchange contract is null and void, it is reasonable in our experience to view that the possession is not an independent possession, and if he was aware that there was no permission of the Minister for delivery in the exchange contract on the basic property of the school juristic person, the exchange contract is null and void.

[Defendant-Appellee] Defendant 1 and 3 others

Attorney Lee Jong-hoon et al., Counsel for the defendant

Seoul High Court Decision 75Na1151 delivered on January 30, 1976

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. The reasoning of the judgment below is as follows.

(1) The land of this case was originally owned by the defendant, and the plaintiff was transferred to the plaintiff under the same exchange contract with 1954.8.6, and the plaintiff's possession of the real estate of this case was limited to the above exchange contract, and the plaintiff acquired ownership of the same real estate for 20 years since it was completed as owner's intention. Thus, the plaintiff's disposal of the real estate of this case as the defendant's basic property, which is the defendant's foundation of this case, without the permission of the Minister for delivery, is not allowed. Thus, the plaintiff's claim for sale of this case is not a performance of the above exchange contract, which was concluded between the plaintiff and the defendant, and it is obviously impossible for the plaintiff to exchange the real estate of this case with the defendant 1 to the defendant 7 of this case's purchase of real estate of this case by the defendant 5's non-party No. 97 of this case's non-party No. 97 of this case's assertion that the above exchange contract was not an execution of the above exchange contract of this case's No.3 of this case's real property.

2. As to whether the Plaintiff’s possession is frequently occupied, health expenses;

According to the records, evidence Nos. 11 and 11-2, and the defendant's argument, the land in this case can be seen as the basic property of the defendant school foundation (the foundation foundation at the time of the exchange contract). The disposal of basic property of the foundation foundation is an alteration of the articles of incorporation and thus becomes effective only with the permission of the competent authority (see Supreme Court Decision 68Da2323, Feb. 18, 1969). Thus, in the exchange and disposal of the land in this case, there is no theory between the parties, and according to the testimony of the non-party 2 and the non-party 3 of the witness, the above exchange contract cannot be deemed null and void. However, if the person who takes over the land from another person through the contract such as the sale and exchange is aware that the exchange contract is null and void, it is reasonable to view that the plaintiff's intention to possess the land in this case is not known that there is no independent possession contract of the plaintiff as the plaintiff's experience in the exchange contract of this case.

Nevertheless, the above decision of the court below, which concluded that it is unnecessary to consider the invalidity of an exchange contract as an independent possession due to the nature of source of source of source of source of source of source of source of source of right, is erroneous in the misapprehension of legal principles as to independent possession, and failed to exhaust all necessary deliberations as

3. As to whether the possession of the defendant is approved:

In accordance with the records, the Plaintiff’s statement in the name of May 3, 1973, in the name of the Plaintiff, one of the No. 4-1 of the No. 4-1, 1973, stated in the separate sheet (a certificate of delegation) on the ownership transfer of the real estate (the land of this case) listed in the separate sheet (a certificate of delegation) on the ownership transfer at your private teaching institute, shall be accompanied by the power of delegation and written consent necessary for the establishment of the right to collateral security, but shall be exempted from the responsibility for consent and power of delegation until August 15, 1973. If you have due to the fact that the Plaintiff’s failure to own the land of this case, the Plaintiff could not be presumed to have presumed to have been the Defendant’s ownership, and thus, the lower court did not agree with the conclusion that the Plaintiff did not have made a mistake in the fact that it was 100,000 won or more in the name of the Defendant and that it did not have made a reimbursement for the land of this case.

4. The judgment of the court below is reversed on the grounds of the above reasoning. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kang Jeong-hee (Presiding Justice)