(영문) 대법원 2016.5.12.선고 2015다254521 판결

1. If the nature of possessory right of real estate is not clear, the possessor is presumed to have occupied the property in good faith, peace, and public performance pursuant to Article 197(1) of the Civil Act. Such presumption is equally applied to the possession by the State or a local government, which is the managing body of the public cadastral record, (hereinafter “the State, etc.”). Even in cases where the possessor asserts the title of possession, such as purchase and sale or donation, but not recognized as such, the possessor’s source of possession is not recognized unless the possessor bears the burden of proving the title of possession, the presumption of possession cannot be deemed to be reversed or as having the nature of the possessor’s source of possession (see, e.g., Supreme Court Decisions 9Da72743, Feb. 26, 2002; 2006Da28065, Feb. 8, 2007). Therefore, even if the State, etc. did not lawfully submit documents regarding the procedure for acquiring the ownership of land, the State, etc.’s attempt to acquire ownership without permission, 2007.

2. According to the reasoning of the first instance judgment cited by the lower court, the lower court determined that the Defendant’s presumption of possession of each of the instant lands was broken down on the ground that it was reasonable to deem that the Defendant occupied and used each of the instant lands without undergoing the procedure for acquiring public property, on the grounds that the Defendant, while recognizing the fact that the land category of each of the instant lands was changed to a road and provided each of the instant lands to the general public for the sake of traffic, on the grounds that it was reasonable to deem that the Defendant occupied and used each of the instant lands without undergoing the procedure for acquiring public property.

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

A. According to the reasoning of the first instance judgment as cited by the lower court and the evidence duly admitted, the following facts are revealed.

① On November 30, 1944, the land category of the land cadastre was changed from 255 square meters in the list of real estate attached to the lower judgment (hereinafter referred to as “D”) to 'Do', and as the land category of the land cadastre was changed to 'Do' from 'Do' on November 30, 194, and is assigned to X, Y, Z, AAB land, etc. and used as a road (E) site.

② On February 24, 1962, the land category of the land cadastre was changed from 'responding' to 'responding' to 'the road' after being divided into 3, 4, and 5 land listed in the list of real estate attached to the lower judgment 2, which was attached to the lower court (hereinafter referred to as the "I land of this case") and is assigned to the existing road site and being used as a road.

③ The owner of the above land before subdivision, after the subdivision from each of the instant land, etc. to each of the instant land, K did not exercise any right with respect to the land whose land category was changed to a road. On the other hand, with respect to the remaining land divided from the said land before subdivision, K exercised its right by selling all of them to a third party.

④ The inheritors of each of the instant lands, including K and the Plaintiff, did not object to, or demand compensation for, the fact that each of the instant lands was divided from the land before subdivision, and the land category was changed to a road from the time when the Defendant possessed each of the instant land as a road until 2013, and did not complete, registration of preservation of ownership, inheritance registration, etc. as to the instant D land

⑤ The Defendant did not impose property tax on K or its inheritors after the land category of each of the instant lands was changed to a road.

B. Examining these circumstances in light of the legal principles as seen earlier, even if the Defendant failed to submit the documents regarding the acquisition procedure of each of the instant land, the possibility that the Defendant was in possession of each of the instant land, or the purpose of possession, and the disposal, use, and right-use of each of the instant land and other land divided with the Defendant, cannot be ruled out. Therefore, it is difficult to recognize the Defendant’s possession of each of the instant land without permission. Moreover, it cannot be deemed that the presumption of the Defendant’s autonomous possession of the instant land was reversed only on the basis of the instant civil petition reply, without undergoing additional deliberation on the developments leading up to and basis for the reply to Nonparty W. Nevertheless, the lower court determined otherwise solely on the grounds as indicated in its reasoning. In so doing, it erred by misapprehending the legal principles on the presumption of autonomous possession, thereby adversely affecting the conclusion of the judgment. The ground of appeal assigning this error is with merit.

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 Justices on the bench.