[1] Where the burden of proof and the presumption of independent possession are reversed with respect to the acquisition by prescription

[2] In a case where the successor of the possessor asserts only his own possession, whether the possessor's possession is presumed to be an autonomous possession even if the former possessor's possession is an exclusive possession (affirmative)

[3] In a case where the possessor deniess the right of possession as alleged by the possessor, whether it can be viewed as the reversal of the presumption of possession with intention to own or as the possession with intention to own (negative)

[4] The case holding that the presumption of possession with independence cannot be deemed to have been reversed

[1] According to Article 197(1) of the Civil Act, the possessor of an object is presumed to have occupied the object as his/her own intent. Thus, if the possessor asserts the acquisition by prescription, he/she has no responsibility to prove the intention of possession. The person who denies the establishment of the acquisition by prescription by asserting that the possessor has no intention of possession. Whether the possessor is an autonomous possession or an unauthorized possession with no intention of possession should be determined by the internal deliberation, not by the possessor, but by the external and objective decision of the possessor, depending on the nature of the title that caused the acquisition by possession or all the circumstances related to the possession. Therefore, it is proved that the possessor acquired the possession on the basis of the title that the possessor is deemed to have no intention of possession, or that the possessor has an intention of exclusive control as his/her own property by excluding another's ownership. In other words, it is objectively objective that the possessor cannot be deemed to have occupied the object, namely, where the possessor does not express his/her intention of possession or does not act as a matter of course if the possessor was an owner, the possessor cannot be presumed to have the external ownership.

[2] In a case where the succession of possession is made, if the successor of the possessor asserts only his own possession even if the former possessor is the possession by the latter owner, the present possessor's possession is presumed to be an independent possession.

[3] Even in cases where the possessor asserts the right of possession, such as sale and purchase or donation, but this is not recognized, the presumption of possession with the sole reason that the possessor is not recognized as the source of possession right cannot be deemed to be reversed or as the possession with the nature of the source of possession right, unless the possessor bears the burden of proving the right of possession with respect to the original source of possession.

[4] The case holding that the presumption of possession with independence cannot be deemed to have been reversed

[1] Articles 197(1) and 245 of the Civil Act / [2] Articles 197(1) and 245 of the Civil Act / [3] Articles 197(1) and 245 of the Civil Act / [4] Articles 197(1) and 245 of the Civil Act

[1] Supreme Court en banc Decision 95Da28625 Decided August 21, 1997 (Gong197Ha, 2501) Supreme Court Decision 98Da10618 Decided June 23, 1998 (Gong1998Ha, 1950), Supreme Court en banc Decision 97Da37661 Decided March 16, 200 (Gong200Sang, 964, 9655 Decided March 24, 200) (Gong2000Sang, 100Sang, 104, 1042) / [2] Supreme Court Decision 88Da2494, 240, 24417 (Gong1989, 197, 197, 297Da198497, May 26, 198)

Kim-hee (Attorney Jeong-mo et al., Counsel for the defendant-appellant)

Lee Sung-sung (Attorney Kim-Hy et al., Counsel for defendant-appellee)

Daegu District Court Decision 98Na19088 delivered on November 24, 1999

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

We examine the grounds of appeal.

1. According to the reasoning of the judgment below, the court below determined as follows as to the plaintiff's assertion that the plaintiff acquired the land of this case by prescription on March 25, 197 after 20 years from March 25, 197, 197, since Kim Sejong-dong (the "Geo-dong of the judgment of the court below" seems to be a clerical error) purchased from the deceased-gu, Daegu-gu, Daegu, where the land belongs and distributed farmland, from the deceased-gu, Daegu, which had completed the repayment of 407-1 to 408 square meters, and Kim Dong-dong, the plaintiff's father Kim Dong-dong, who was living in Dong-dong, transferred the land of this case and the house of this case to the plaintiff during the process of building a new house on the ground and occupying and using the land as the site, and the plaintiff occupied the land of this case from that time until then.

In other words, the lower court rejected the Plaintiff’s acquisition of the instant land under the name of Nonparty 1 and Nonparty 2, on the premise that the Plaintiff was occupying and using the instant land as the Plaintiff’s land site. However, it is clear that the Plaintiff had no intention to occupy and use the instant land under the name of Nonparty 1 and no intention to occupy and use the instant land for 7 years or more, and that the Plaintiff had no intention to occupy and use the instant land under the name of Nonparty 1 and no intention to occupy and use the instant land for 7 years or more, and that the Plaintiff had no intention to occupy and use the instant land under the name of Nonparty 1 and no intention to occupy and use the instant land for 7 years or more, and that the Plaintiff had no intention to occupy and use the instant land under the name of Nonparty 1 and no intention to use the instant land for 7 years or more, and that there was no possibility that the Plaintiff would have received the instant land as a gift under the name of Nonparty 2, the title of the instant land under the name of Nonparty 1 and No. 3.

2. The judgment of this Court

A. According to Article 197(1) of the Civil Act, the possessor of an object is presumed to have occupied the object as his/her own intent. As such, the possessor does not bear the burden of proving his/her own intention if he/she asserts that the possessor has no intention to own it, and the person denying the establishment of the prescriptive acquisition by asserting that the possessor has no intention to own it. In addition, whether the possessor is the owner or the possessor has an intention to own it shall not be determined by his/her internal intent, but shall be determined externally and objectively based on the nature of the title that caused the acquisition of the possession or all circumstances related to the possession, rather than by the possessor’s internal intent. Thus, the possessor is proved to have acquired the possession based on the title that appears to have no intention to own, or cannot be deemed to have occupied with the intent of exclusive control as his/her own property by excluding the ownership of another person. In other words, the possessor cannot be deemed to have taken an ordinary attitude if the possessor did not act as a matter of course if he/she did not appear to have been the owner.

In the case of this case, the fact that the plaintiff, his father, Kim Dong-dong, had newly built a house on the ground and occupied it as the site, and possessed the land of this case as the site of this case is acknowledged on the record (it is evident that the defendant does not dispute the fact of possession by the plaintiff, and that the judgment of the court below is not the purport of denying it). The fact that on November 22, 1940, the plaintiff resided in the house of this case, which was newly constructed on the land of this case around 1951, and has occupied it in a peace and public performance until now.

Therefore, the presumption of possession with respect to the land of this case cannot be said to have been broken immediately on the ground that the possession of the land of this case is presumed to be possession independently, and that the donation of the land of this case, which is the cause of the right of possession asserted by the plaintiff, is unclear, or that it is not recognized on the record. The defendant who denies the establishment of the acquisition by prescription, must prove the fact that the possession is possession with respect to the land of this case, or prove the external and objective

B. As seen earlier, the lower court deemed that the presumption of the Plaintiff’s autonomous possession of the instant land was broken on the grounds of various circumstances, but it is difficult to accept it.

(1) The Plaintiff’s assertion that the land was donated by Kim Jong-dong at the time of 1951, which was no longer recognized as having been the owner of the land, was Kim Jong-dong, and it is unclear whether the land was donated by Kim Jong-dong, which was not an owner of Kim Jong-dong, but an occupant of the land at the time of 1951. However, the Plaintiff’s assertion in this case is difficult to recognize that the Plaintiff had a legitimate title to occupy the land at the time of 20 years ago on March 25, 197, on the premise that the Plaintiff acquired the land at the time of 20 years later on March 25, 197, on the premise that the Plaintiff had no title to the land at the time of 197, and that the Plaintiff had no right to occupy the land at the time of 19 years later, or that the Plaintiff had no right to occupy the land at the time of 20 years later, or that the Plaintiff had no right to possess the land at the time of 3 years later.

Therefore, the judgment of the court below which judged otherwise is erroneous in the misunderstanding of facts against the rules of evidence or in the misunderstanding of legal principles as to the reversal of the presumption of possession with autonomy, and it has affected the conclusion of the judgment. The part of the grounds of appeal assigning

3. Conclusion

Therefore, 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 Yoon Jae-sik (Presiding Justice)