(a) The burden of proving the possession with respect to the prescriptive acquisition;

B. Whether the presumption of possession can be reversed solely on the ground that the possessor’s title to the possession alleged is not recognized

A. Since the possessor is presumed to have occupied as his/her own will, in acquiring by prescription, he/she shall not be held responsible to prove that the cause of possession is the sale or donation in order to prove that the possessor is an independent possession.

B. The fact that the possessor purchased or donated the source of possession that he/she asserted as the source of possession with intention to hold possession does not necessarily mean that the possessor is not an independent possession due to the nature of the source of possession right.

Articles 197(1) and 245 of the Civil Act

Supreme Court en banc Decision 82Da7088 delivered on July 28, 1981, 80Da1875 delivered on November 23, 1965, 80Da2289 delivered on July 14, 1981, 82Da708 delivered on July 12, 1983

Plaintiff-Appellant Kim Yong-jin, Counsel for plaintiff-appellant

Defendant Kim Byung-jin, Counsel for the defendant-appellant

Seoul Central District Court Decision 82Na319 delivered on February 18, 1983

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

The grounds of appeal are examined.

According to the reasoning of the judgment below, the court below rejected the defendant's assertion that the defendant's acquisition by prescription will expire from April 30, 1960 to December 6, 1976 as follows: (a) Non-party 1 and Non-party 2 occupy the attached Form 2 drawings (A), part 11.1 square meters (hereinafter "the site in this case") attached to the judgment below among Non-party 1 and Non-party 2's land 72-3 Hobbe, Seodaemun-gu, Seoul, which was registered in the name of the plaintiff from April 30, 1960; and (b) occupied Non-party 1 and Non-party 2 as the intention of possession; and (c) he continually occupied Non-party 3 through Non-party 3 and Non-party 2 as the owner of the site in this case without any intention of possession; and (d) the defendant's assertion that the acquisition by prescription will expire at the expiration of twenty (20) years from April 30, 1960.

However, since the possessor is presumed to have occupied as the owner's intention (Article 197 (1) of the Civil Code), the possessor shall not be held liable to prove the fact that the cause of the possession is the sale or donation in order to prove that the possessor is the owner's intention, and the possessor shall not be deemed to hold possession with the nature of the possessor's right by virtue of the nature of the possessor's right, on the ground that the possessor has no purchase or donation. The court below acknowledged the possession of the defendant's assertion and, unless there is a sale or donation on the premise that the defendant bears the burden of proof of the owner's independent possession, the possession of the defendant's assertion cannot be deemed to be an possession with the nature of the title, and the above determination has been made on the ground that there was

Therefore, the judgment of the court below is reversed, and the case is remanded to the Panel Division of the Seoul Civil Procedure District Court. It is so decided as per Disposition by the assent of all participating Justices.

Justices Jeong Tae-tae (Presiding Justice)