The burden of proof of possession with respect to prescriptive acquisition

In the case of acquisition by prescription, the intention of possession, which is the requirement for possession with intention of possession, shall be determined depending on the nature of the source of possessory right, which is the cause of acquisition by possession, or even if the nature of the source of possessory right is unclear, the possessor is presumed to have possession with intention of possession pursuant to Article 197(1) of the Civil Act. Therefore, the possessor is not actively responsible for proving that the possession is possession with intention of possession,

Articles 197 and 245 of the Civil Act

Supreme Court Decision 65Da1875 delivered on November 23, 1965, 65Da1836 delivered on January 25, 1966, Supreme Court Decision 68Da729 delivered on June 18, 1968, 75Da1886,1887 delivered on March 9, 1976, and 80Da2289 delivered on July 14, 1981, Supreme Court Decision 78Da1888 delivered on July 28, 1981, 83Meu1523 delivered on December 13, 1983

Plaintiff 1 and 12 plaintiffs et al., Counsel for the defendant-appellant-appellee and 3 others

Defendant 1 and 7 Defendants, et al., Counsel for the defendant-appellant-appellee)

Cheongju District Court Decision 82Na131 delivered on April 22, 1983

The conjunctive claim portion of the judgment below shall be reversed, and this part of the case shall be remanded to Cheongju District Court Panel Division.

The remaining appeals by the plaintiffs are dismissed, and the costs of appeal by the dismissed part are assessed against the plaintiffs.

The plaintiffs' grounds of appeal are examined.

1. With respect to the primary claim:

The court below is just in rejecting the plaintiffs' assertion that the plaintiff's prior-party 1 purchased the land portion at the original market, which is the real estate of this case, from the co-defendant 2 of the court of first instance on November 2, 1943, and the court below compared the process of selecting evidence with the records and compared it with the court below's decision-making process, and there is no error of law as to the omission of judgment or omission of judgment, or violation of the rules of evidence, and therefore, there

2. As to the conjunctive claim:

According to the reasoning of the judgment below, the court below rejected the plaintiffs' assertion on the prescriptive acquisition without examining the remaining points, as long as the plaintiffs' assertion on the prescriptive acquisition is not acknowledged to have been purchased as their possessory source, since it cannot be presumed that the plaintiffs occupy the land as their owner's intention.

However, in the case of acquisition by prescription, the intention of possession, which is the requirement for possession with intention of possession, should be determined depending on the nature of the source of possessor’s right which is the cause of acquisition by prescription, or even if the nature of the source of possessor’s right is not clear, the possessor is presumed to possess with the intention of possession under Article 197(1) of the Civil Act. Thus, even if the possessor does not actively prove that the possession is possession with intention of possession, and the possessor does not bear the burden of proving the source of possessor’s right of possession, and the other party who contestss the source of possessor’s right of possession does not have the burden of proving the source of possessor’s right of possession, it cannot be said that the presumption of possession with intention of possession is reversed or that the possessor is occupied with the nature of the source of possessor’s right.

Therefore, in the instant case where the plaintiffs had occupied the land of this case for not less than 20 years (the total possession by Nonparty 1, who is the former occupant), even though the plaintiffs did not prove that the facts alleged to have been alleged to have been sold, it cannot be deemed that such possession is not an independent possession, and the plaintiffs are not responsible to prove that it was an independent possession. Therefore, the court below should have reviewed and judged whether the possession was recognized, and accepted the assertion of prescriptive acquisition premised on the premise that it was an independent possession, unless the possession was proven to have been proven to have been occupied by the plaintiffs. However, the court below rejected the assertion of prescriptive acquisition without considering the existence of possession as alleged by the plaintiffs, on the ground that it is not recognized as a fact of sale. In this point, the part of the preliminary claim in the judgment below is erroneous in the misapprehension of the legal principles as to the independent possession and the burden of proof, which serves as the requisite for prescriptive acquisition, and by failing to exhaust all necessary deliberations as to the existence of independent possession, which affected the conclusion

3. Therefore, the part of the judgment below's conjunctive claim shall be reversed, and that part of the case shall be remanded to Cheongju District Court Panel Division. The remaining plaintiffs' appeals shall be dismissed, and the costs of the appeal as to the dismissed part shall be assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices

Justices Kim Young-ju (Presiding Justice)