[1] Whether the presumption of possession can be reversed solely on the ground that the possessor’s title to the possession allegedly is not recognized, or whether the possession can be deemed as possession with the nature of the possessor’s source (negative)

[2] In a case where a purchaser of land acquired possession of the land for the purpose by a sales contract, whether the presumption of possession with autonomy can be reversed solely on the ground that the contract constitutes the sale of the land of another person and the acquisition of ownership can not be promptly acquired (negative in principle), and whether the possession without registration can be deemed as possession with intention to own the land solely on the basis

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

[1] Supreme Court en banc Decision 82Da708, 709, 82Meu1792, and 1793 Decided July 12, 1983 (Gong1983, 1248), Supreme Court en banc Decision 95Da28625 Decided August 21, 1997 (Gong1997Ha, 2501) / [2] Supreme Court Decision 93Da1886 Decided October 12, 1993 (Gong1993Ha, 3065), Supreme Court Decision 95Da53768 Decided March 222, 1996 (Gong196Sang, 1349), Supreme Court en banc Decision 97Da37610, March 16, 200 (Gong2902)

Plaintiff

Republic of Korea (Attorney Lee Jong-soo et al., Counsel for defendant-appellant)

Changwon District Court Decision 201Na14699 decided May 15, 2013

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

The grounds of appeal are examined.

1. From the prescriptive acquisition of real estate, whether the possessor’s possession is the possession with the intention of possession, or without the intention of possession, is not determined by the internal deliberation of the possessor, but by the nature of the source of possession or all circumstances related to the possession. However, if the nature of the source of possession is not clear, it is presumed that the possessor is possession with the intention of possession pursuant to Article 197(1) of the Civil Act, the possessor is not responsible for proving that the possessor is possession with the intention of possession, and bears the burden of proving the possession with respect to the other party who asserts that the possessor is the owner with no intention of possession. Therefore, even if the possessor claims the title of possession, such as the purchase, even if it is not recognized, it cannot be deemed that the presumption of possession is reversed or that the possessor is another owner with the nature of the source of possession (see, e.g., Supreme Court en banc Decision 82Da708, Jul. 12, 1983; Supreme Court Decision 2008Da197539, Jul. 29, 1975).

In addition, even if the purchaser of land acquires the possession of the land for the purpose by the sale and purchase contract, it cannot be readily concluded that the purchaser obtained the possession on the basis of the source of possession right, which appears to have no intention to own on the basis of the source of possession right, even if it is the sale of the land of another person and it is impossible for the purchaser to acquire the ownership immediately. Furthermore, unless special circumstances are proved, such as that the purchaser purchased the land with the knowledge of the absence of the right to dispose of the land, it cannot be said that the presumption of possession with the intent to own is broken up immediately (see, e.g., Supreme Court Decisions 93Da1886, Oct. 12, 1993; 95Da53768, Mar. 22, 1996). In addition, the presumption of possession with the intention to own the land for the purpose of possession as stated in Article 197(1) of the Civil Act should not necessarily be accompanied by the intention to actually possess the land for the purpose of possession.

2. According to the reasoning of the judgment below and the records, ① on August 14, 1964, Nonparty 1 sold the instant land and its ground land to Nonparty 2. The Plaintiff’s father Nonparty 3 occupied the instant land while living together with his family from around at least 1968; ② upon Nonparty 3’s death on October 3, 1979, Nonparty 3 inherited the instant land independently in accordance with the agreement on the division of inherited property and occupied the instant land in a peaceful and public manner until now; ③ the instant land was registered as transfer of ownership on April 12, 1935 on the old land. The Defendant completed the registration of ownership transfer on the above land on December 11, 2006 due to the completion of the registration of ownership transfer on September 11, 1948; ④ the Plaintiff maintained the sales contract on the sales contract concluded between Nonparty 1 and Nonparty 2 and the registration certificate on the transfer of ownership, etc. as the buyer’s letter of delegation (hereinafter “the above sale certificate”).

Based on the above findings, the court below held that the plaintiff could not acquire the land of this case by prescription on the ground that the non-party 3 and the plaintiff occupied the land of this case and the plaintiff with the intention to own the land until now since the non-party 3 purchased the land of this case and the land of this case from the non-party 2 on June 5, 1966.

3. However, it is difficult to accept the above determination by the court below for the following reasons.

A. Although there is no sales contract, etc. entered into between Nonparty 3 and Nonparty 2, the following circumstances that could be known by the above facts, namely, Nonparty 3 and the Plaintiff occupied the land of this case in peace and openly for at least 40 years since the sale and purchase of the allegation, the previous sales contract, etc. in the Plaintiff’s custody appears to have been transferred to Nonparty 3, and if the sales contract was not entered into between them, it would be difficult to reasonably explain the circumstances. At the time of the intermediate omission registration, etc., the intermediate buyer received a blank sale certificate from the first seller and transferred it to the final buyer for the purpose of the intermediate omission registration, etc., there is sufficient room to deem that the sales contract was concluded as alleged above between Nonparty 3 and Nonparty 2.

B. Furthermore, if Nonparty 3 purchased the instant land from Nonparty 2 and possessed it, it cannot be immediately acquired the ownership of the instant land by Nonparty 3 because Nonparty 2 was not the owner on the register. However, in the record, there is no evidence to deem that Nonparty 3 was aware of the absence of the right to dispose of the instant land to Nonparty 2, the mere fact that Nonparty 2 was not the owner on the register cannot be said to be based on the title that Nonparty 3 was deemed to have no intention to own by the nature of the source of right. Moreover, it cannot be presumed that Nonparty 3 was aware of the seller at the time of the sale, and it cannot be said that the presumption of possession of the intention to own is broken.

C. In addition, considering the above facts in light of the legal principles as seen earlier, insofar as Nonparty 3 and the Plaintiff occupied the instant land for not less than 20 years, it is presumed that Nonparty 3 and the Plaintiff possessed the instant land with the intention of possession. Therefore, in order to prove that the Plaintiff is an independent possession, the Plaintiff is not responsible for proving that the cause of acquiring the instant land was the transaction, and the Plaintiff did not have any burden of proof as to the purchase and sale without the burden of proof as to the Plaintiff.

4. Nevertheless, the court below did not examine whether the Defendant fulfilled the burden of proof on the Plaintiff’s possession of the land in this case, and concluded it as the possession without the intention to own the Plaintiff’s possession, solely for the reasons indicated in its reasoning. In so doing, the court below erred by misapprehending the legal principles on the presumption of possession with autonomy, which led to the failure to exhaust all necessary deliberations, which affected the conclusion of the judgment. The ground of appeal assigning this error is with merit.

5. 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 Park Poe-dae (Presiding Justice)