In a case where the criteria for determining possession of an article and the fact of registration is recognized as the owner of a site, whether the possession is recognized (affirmative in principle), and whether the same applies to registration of preservation of ownership (negative)

The possession of a thing refers to an objective state under the factual control of a person under the social norms. In order to have a factual control, the possession of a thing must be determined in conformity with the social concept in consideration of the time, space, relationship with a person, possibility of excluding others’ control, etc. In particular, the transfer of possession of a forest and field does not necessarily require a physical and realistic control, and the continuation of possession does not necessarily require a transfer of possession or use of forest and field, and the transfer of ownership is deemed to have occurred if the ownership of a forest and field is transferred. In addition, in the case of a common person registered as the owner of a building site, the possession of the forest and field shall be deemed to have been acquired by delivery of the building site and it shall not be determined that the possession cannot be recognized without any special circumstances. However, the same applies to the case of registration of preservation of ownership where the forest and site are transferred due to sale and purchase, etc., and the ownership transfer registration is completed accordingly, it cannot be deemed that the owner of the forest and field is not subject to registration of preservation of ownership.

Article 192 of the Civil Act

Supreme Court Decision 78Da192 Decided November 14, 1978, Supreme Court Decision 91Da38266 Decided June 23, 1992 (Gong1992, 2239) Supreme Court Decision 98Da2010 Decided January 16, 2001 (Gong2001Sang, 435)

Plaintiff (Attorney Yoon Sung-sung et al., Counsel for plaintiff-appellant)

Defendant 1 and 16 others (Law Firm Dong, Attorneys Clerks et al., Counsel for the defendant-appellant)

Seoul Central District Court Decision 2012Na9392 Decided July 19, 2012

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

The grounds of appeal are examined.

The possession of a thing refers to an objective state under the factual control of a person under the social norms. In order for a person to have a factual control, it is not necessarily necessary to refer to the physical or practical control of a thing. It should be determined in conformity with social norms in view of the time, space and relationship with the thing, possibility of excluding others’ control. In particular, the transfer of possession or continuation of possession of forest land does not necessarily require physical and realistic control, and it should be deemed that delivery was made if there is transfer of management or use, and if ownership of forest land is transferred, the transfer of control over the forest land should also be deemed as ordinary form in the transaction (see Supreme Court Decision 91Da38266, Jun. 23, 1992, etc.). Moreover, since a person who has registered as the owner of a building site should be deemed to have obtained possession by delivery of the building site when it is ordinarily registered, it shall not be deemed that the fact of possession cannot be recognized by the owner of the forest and field subject to registration of preservation of ownership without any special circumstances (see Supreme Court Decision 200Da1816, Apr. 17, 197, 197, 197, etc.

Therefore, the court below held that the deceased non-party occupied each of the above land from the time on the basis of the fact that the registration of ownership preservation was completed on March 16, 1965 with respect to each of the land of this case in which the deceased non-party, who was the fleet of the defendants, had not been registered, was erroneous in the misapprehension of legal principles as to the certification of possession, or in excess of the limit of the principle of free evaluation of evidence in violation of logical and empirical rules, which affected the conclusion of the judgment.

Therefore, the lower judgment is reversed by the assent of all participating Justices, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition.

Justices Kim Chang-suk (Presiding Justice)