[1] Whether the possession of the property devolving upon the ground that the property devolving upon the State was changed into the state property under the law is converted into the possession with the intention to hold the property independently from that time

[2] The case holding that the possession of the respondent shall be deemed as the possession of a third party where the State, at the time of the first and fourth retirement, had the refugees settle down gratuitously on the miscellaneous land which is the property devolving upon the State

[1] In a case where the nature of the possessory right is determined by the nature of the possessory right, and the nature of the possessory right is not clear, the possession is presumed to be the possessory right pursuant to Article 197(1) of the Civil Code. Thus, even if the possessory right becomes the state property from January 1, 1965 under the Act on Special Measures for the Disposal of Property Belonging to Which the possessory right belongs, it does not necessarily mean that the possession was naturally converted from the possessory right to the possessory right from the time of possession to the possessory right, and even in this case, the possessor’s possession shall be determined by what the nature of the holder’

[2] The case holding that the possession of the respondent shall be deemed as possession, in case where the State, at the time of the first and fourth retirement, had the refugees settle down gratuitously on the miscellaneous land, which is the property devolving upon the State

[1] Articles 197 and 245(1) of the Civil Act; Article 5 of the Addenda to the Act on Special Measures for the Disposal of Property Belonging to the State (Law No. 1346, May 29, 1963; December 31, 1964); Article 245(1) of the Civil Act / [2] Article 245(1) of the Civil Act

[1] Supreme Court Decision 91Da39917 delivered on February 14, 1992 (Gong1992, 1031), Supreme Court Decision 92Da26819 delivered on February 23, 1993 (Gong1993Sang, 1060), Supreme Court Decision 93Da23572 delivered on September 14, 1993 (Gong1993Ha, 277) / [2] Supreme Court Decision 95Da18024 delivered on July 14, 1995 (Gong195Ha, 2806)

Plaintiff 1 and nine others (Attorney Choi Jong-soo, Counsel for the plaintiff-appellant)

Korea

Jeonju District Court Decision 94Na1282 delivered on October 18, 1994

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

The grounds of appeal are examined.

In a case where the nature of the possessory right is determined by the nature of the possessory right, and the nature of the possessory right is not clear, the possession is presumed to be the possession independently pursuant to Article 197(1) of the Civil Act. Thus, even if the possessory right becomes the State property from January 1, 1965 under the Act on Special Measures for the Disposal of Property Belonging to Ownership, his possession does not naturally have been converted from the possession to the possession independently from the other possession at that time, but even in this case, the existence of the possessory right should be determined by what the nature of the possessory right commenced to possess the above property is.

However, according to the facts established by the court below, some of the plaintiffs and all of the plaintiffs (hereinafter "the plaintiff et al.") were to occupy the real estate of this case for the first time before the Korean War without finding a place where the plaintiff et al. residing in North Korea left the land at the time of their first and fourth retirement, and the defendant's miscellaneous land provided miscellaneous land, which is the property devolving upon the plaintiff et al., and formed a village by settling miscellaneous land at that place and making it a living base for the plaintiff et al. as a part of refugee measures. Thus, it should be deemed that the state was able to take into account the situation that the plaintiff et al. purchased the real estate of this case for the first time until the time when the plaintiff et al., the refugee et al. was settled as part of refugee measures, and it should be deemed that most of the above land were to be the owner of the above land, and since some of the plaintiffs were to possess a building in neighboring land of this case and that the plaintiff et al. owned the land of this case with exclusive ownership of this case.

Therefore, without determining at all the nature of the title that the plaintiff et al. occupied each of the real estate of this case, the court below recognized that the possession of each of the real estate of this case was converted into possession independently since January 1, 1965 under the Act on Special Measures for the Development of National Property only because it became a state property shall be deemed to have committed an error of law that affected the conclusion of the judgment by misunderstanding the legal principles on the intention of possession and misunderstanding the facts through insufficient deliberation. Therefore, the appeal pointing this out has merit.

Therefore, without further proceeding to decide on the remaining grounds of appeal, 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.

Justices Lee Jae-soo (Presiding Justice)