The nature of possession of a person who succeeds to the possession of another owner;

If the possession of the representative is the possession by the owner, the possession of the person who succeeds to the possession by inheritance from the owner does not differ from the inheritance transfer and its nature or attitude, and therefore, the possession cannot be the possession by the owner with the intention of the owner, unless there are special circumstances, and if the possessor is to become the owner with the intention of the possession by the owner with the intention of the possession by the owner, or by the intention of the ownership again by the new owner with the intention of the ownership.

Articles 199 and 245 of the Civil Act

Supreme Court Decision 66Da1256 Decided October 18, 1966, 70Da2755 Decided February 23, 1971, Supreme Court Decision 74Da2136 Decided May 13, 1975

[Judgment of the court below]

Defendant 1 et al., Counsel for the defendant-appellant

Msan District Court Decision 84Na69 delivered on August 24, 1984

Supreme Court Decision 84Meu1974 Decided June 11, 1985

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

The grounds of appeal are examined.

(1) According to the judgment of the court below, the court below collected evidences and held that the site of this case was originally owned by the deceased non-party 1 at the time of original adjudication, but when the deceased died in 1897, the deceased non-party 2, who was the father of the plaintiff, succeeded to it and owned it under its name, and that the deceased non-party 3, who was the father of the defendant's father, was living in the above site of this case due to the defect of 1925.21, 1925. The deceased non-party 3, who was living in the above house of this case and died on August 1, 1958, and thereafter, the deceased non-party 4, who was the plaintiff, resided in the above house of this case and died on the above house of this case, was presumed to have occupied the above land of this case as the plaintiff 1, 1968 and 1970, and thus, it was presumed that the defendant occupied the above land of this case 1, 197, and had been occupied by the defendant 18.

(2) However, since the possession of the representative by inheritance does not differ from that of the person who succeeded to the possession by the representative, barring special circumstances, inasmuch as the possession does not change from the possession before the inheritance, the possessor cannot be a self-owned possession, and if the possessor is to be a self-owned possession, the possessor must either indicate that the possessor has the intention of possession or commence the possession with the intention of ownership again by the source of trust or with the intention of ownership again by the source of trust (see, e.g., Supreme Court Decision 74Da2136, May 13, 195; 70Da2755, Feb. 23, 1971; 76Da1256, Oct. 18, 196), the court held that the possession cannot be deemed to fall under the non-party 3's new possession or the non-party 4's new intention to succeed to the possession of the site of this case by the inheritance from the deceased non-party 3, who was the first party 1958.

As to this point, the court below explained that the deceased non-party 2 owned the site of this case and the deceased non-party 3 was living in the house on the site of this case due to the defect that he was living in the village of this case and until the deceased non-party 3 died on August 1, 1958, and did not clearly state the nature and form of possession of the deceased non-party 3. In light of each of the statements in Eul evidence 4-1 and Eul evidence 5 (Gain Survey Table), according to the court below's reasoning, the deceased non-party 3 was reported as divided before the partition of the site of this case on December 21, 1925, as the deceased non-party 2 owned the building and the attached house on the site of this case, and based on each of these statements, the deceased non-party 2 stated that the deceased non-party 3 had been living in the building site of this case on December 21, 1925, the deceased non-party 2 omitted.

However, according to the above (No. 1 omitted), the above (No. 1 omitted) land was divided into the above (No. 2) land and the above (No. 1 omitted) land at the 5th anniversary of the original land and the Defendant’s house, and the Plaintiff, who is the deceased Nonparty 2 and the son, was no room for the record, and the above (No. 4) evidence No. 4-1 was reported to the deceased on December 21, 1925. However, according to the court below’s decision that the deceased Nonparty 2 occupied the above (No. 1 omitted), it is difficult for the court below to find that the deceased Nonparty 1 and the deceased were the deceased Nonparty 2’s non-party 1 and the deceased’s non-party 2’s non-party 1 and the deceased’s non-party 2’s non-party 1 and the deceased’s non-party 1 and the deceased’s non-party 1 and the deceased’s non-party 1 and the deceased’s non-party 1 and the deceased 10 (no. 7).

(3) As seen above, it is difficult to view that the deceased non-party 3 was holding the land of this case solely with the intention to own the land of this case after the date of the above provisional report. Rather, considering the above Eul's statement No. 4-1 and the testimony of non-party 17 and non-party 18 in the first instance trial, it is recognized that the deceased non-party 3, who is the owner of the land of this case, was not in accordance with the consent of the deceased non-party 2, for convenience of residing in the housing of this case under the permission of the deceased non-party 2, who is the owner of the land of this case, and therefore, it is reasonable to view that the deceased non-party 3's possession of the above non-party 4 by inheritance, unless there are special circumstances, cannot be different from the deceased non-party 3's possession and its nature or form, but it cannot be reversed by the judgment of the court below which did not err in the misapprehension of legal principles as to the presumption of possession of the deceased non-party 3's possession.

(4) 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 judges.

Justices Yoon In-bok (Presiding Justice)