If the area of land occupied by purchase exceeds considerably the area entered in the public register, the nature of possession for the excess (=the possession of the owner)

Articles 197(1) and 245(1) of the Civil Act

Supreme Court Decision 200Da348 Delivered on April 25, 2000 (Gong2000Sang, 1278) Supreme Court Decision 2001Du6982 Delivered on November 27, 2001 (Gong2002Sang, 181) Supreme Court Decision 2003Da61054 Delivered on May 14, 2004 (Gong2004Sang, 991)

Plaintiff

Defendant

Changwon District Court Decision 2008Na9635 decided Nov. 21, 2008

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

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

According to the reasoning of the judgment below, on September 11, 1965, the court below determined as follows: (a) based on its adopted evidence, that the Plaintiff purchased a glue, glue, glue, glue, glue, glue (number, land category, and omitted) from the deceased Nonparty on September 11, 1965 and owned and used the surrounding part of the land (b), (c), (d), and (f) the sum of 215 square meters of the original judgment attached thereto; (b) as well as the portion of the surrounding part of the land (hereinafter referred to as "land in this case") for not less than 20 years since its delivery; and (c) the possessor is presumed to have occupied the land in peace and openly and openly with his intention, the Defendant, who is the owner of the land in this case, is liable to implement the ownership transfer registration procedure

However, since a person who intends to purchase real estate enters into a sales contract after confirming the ownership relationship and size by the certified copy of the register, cadastral record, etc. before entering into the sales contract, it is reasonable to deem that the contracting party was aware of such fact, barring any special circumstances, in a case where the area of land to be occupied by the sale exceeds considerably the area on the cadastral record, such as the register, etc. In such a case, barring special circumstances, such as the seller’s acquisition and transfer of ownership to the excessive portion, the possession of the excessive portion falls under the possession by the nature of the title (see Supreme Court Decision 200Da348, Apr. 25, 200).

According to the facts acknowledged by the court below as seen earlier, the area in the public register of the Plaintiff is 737 square meters, which is the land purchased by the Plaintiff, and the area in the instant dispute is up to 215 square meters in total among the area in the land possessed by the Plaintiff after being transferred from the Nonparty of the seller. As such, the area occupied by the Plaintiff due to the purchase exceeds considerably the area in the public register of the land purchased by the Plaintiff. Therefore, the Plaintiff’s possession of the land in the instant dispute shall be deemed as the possession in light of the nature of the title, unless there are other special circumstances.

Nevertheless, without examining the above special circumstances, the judgment of the court below that held possession of the part of the land in the dispute of this case as possession with intention to hold it independently is erroneous in the misunderstanding of legal principles as to the possession with intention to hold it independently, which affected the conclusion of the judgment (in addition, the court below's failure to summon witnesses of the court of first instance to re-examine the witness of the court of first instance and to reverse the judgment of evidence of the court of first instance without questioning the witness of the court of first instance was a measure that was not

Therefore, without further proceeding to decide on other grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Ji-hyung (Presiding Justice)