In a case where a co-owner who owns or occupies only a specific part in the sectionally owned co-ownership relationship asserts that he/she commenced possession by acquiring a specific part owned or occupied by another co-owner with a title that is separate from the previous co-ownership right such as sale and purchase, whether the presumption of self-ownership can be reversed solely on the ground that the right to acquire is not recognized (negative)

In the case of a co-owned real estate, even if one of the co-owners occupies the entire real estate based on his/her co-ownership right, barring any special circumstances, it shall be deemed as the possession within the limit of the shares of other co-owners by the nature of the title, barring any other special circumstances. However, if a co-owner who owns and occupies only a specific part in the co-ownership relationship, such as sale and purchase, claims that he/she purchased and occupied the real estate owned by another co-owner with the specific part owned and possessed by another co-owner with the title capable of separate possession, such as the previous co-ownership right, there is no need to regard it as the case where he/she claims that he/she purchased and occupied the real estate owned by another co-owner. Therefore, even if the right to acquire the real

Articles 197(1) and 245(1) of the Civil Act

Supreme Court Decision 94Da19884 delivered on January 12, 1995 (Gong1995Sang, 872) Supreme Court Decision 2008Da27752 Delivered on September 25, 2008

[Judgment of the court below]

Defendant (Attorney Lee Dong-sik, Counsel for defendant-appellant)

Busan High Court Decision 201Na9808 decided July 12, 2012

The judgment below is reversed, and the case is remanded to Busan High Court.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. As to the ground of appeal on an exchange agreement

The lower court determined that it is difficult to recognize that there was an exchange agreement as alleged by the Plaintiff on the first and second lands around 1968 on the sole basis of the fact that it was difficult to recognize the fact that there was no other evidence to support the Plaintiff’s assertion, in light of the following circumstances: (a) although it is recognized that the Plaintiff cultivated the entire land of this case (hereinafter “second land”) and paid all taxes, including the aggregate land tax, on the second land; and (b) the cause and timing of the transfer of ownership on the first land (hereinafter “first land”) and on the copy of the register of the second land as indicated in the holding of the lower judgment, etc., of this case; and (c) there was no objective evidence to support the Plaintiff’s assertion

Examining the reasoning of the lower judgment in light of the evidence duly admitted, the lower court did not err in its judgment by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules.

2. As to the ground of appeal on the prescriptive acquisition

A. 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. Thus, the possessor is not liable for proving that the possessor is possession with the intention of possession, and bears the burden of proving that the possessor is the owner with the 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 2009Meu8279, Jul. 19, 20197).

Meanwhile, even if one of the co-owners occupies all the real estate based on his/her co-ownership right, barring any special circumstances, it shall be deemed as the possession of another co-owner within the scope of his/her share ratio in view of the nature of his/her title (see Supreme Court Decisions 94Da19884, Jan. 12, 1995; 2008Da27752, Sept. 25, 2008). However, in cases where the co-owners who own and possess only a specific portion in the co-ownership relation of co-ownership claim that he/she acquired and commenced possession of the specific portion owned and possessed by another co-owner with the title capable of independent possession, such as sale and purchase, it is not necessary to view that the presumption of independent possession is reversed or it cannot be deemed as the owner of the right to possess the other co-owner's real estate in view of the nature of his/her title, and the other co-owner's liability is proved to the other co-owner's possession.

B. According to the reasoning of the judgment below and the evidence duly admitted, ① on May 17, 1946, the registration of ownership transfer was made with respect to the non-party 1's shares in the non-party 2's non-party 2's non-party 1's husband and non-party 2's non-party 1's non-party 2's share in the non-party 2's non-party 1's non-party 2's share in the non-party 2's non-party 6's share in the non-party 1's non-party 2's non-party 2's share in the non-party 2's non-party 1's non-party 6's share in the non-party 2's non-party 1's non-party 2's share in the non-party 3's non-party 9's share in the non-party 1's non-party 2's share in the non-party 1'6-party 1'.

C. Although the land 2 was registered as co-ownership, if it was divided into the upper part of this case and the lower part as alleged by the Plaintiff, it can be deemed that the Plaintiff’s assertion that he occupied the upper part of the land 1 and the second part of the land 2 through an exchange agreement with Nonparty 1 in 1968 was newly acquired and commenced possession on the basis of the title corresponding to the non-party 1’s share in the land 2, which was not occupied during that period. According to the legal principles as seen earlier, even if it is difficult to recognize that the above exchange agreement was reached as seen in the above paragraph 1, the presumption of possession with respect to the Plaintiff’s possession of the upper part of the land in this case cannot be deemed to be reversed or as the owner’s possession with the nature of the source of possession right, and the Defendant who asserted the Plaintiff’s possession is liable for the burden of proving that he/she is the other owner’s possession.

Nevertheless, the lower court, without examining whether the Defendant was responsible for proving the Plaintiff’s burden of other possession of the Plaintiff’s upper part of the instant land, concluded that, solely on the ground that the Plaintiff was co-owned real estate, Nonparty 1 and the Plaintiff divided the instant land into the upper part of the instant land and the lower part for convenience and, even if the Plaintiff occupied the entire land, it is inevitable to regard the portion corresponding to Nonparty 1’s share as the owner possession, even if the Plaintiff possessed the entire land after then. Therefore, the lower court erred by misapprehending the legal doctrine on autonomous possession and the burden of proof, which led to the failure to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment. The allegation in the grounds of appeal on this point is with merit.

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 Shin Young-chul (Presiding Justice)