(a) The burden of proving the intention of possession, which is the requirement for the acquisition by prescription;

B. Whether the presumption of possession is reversed where the possessor is not recognized as the possessor’s source of possessor’s right as asserted

C. The meaning of possession with respect to prescriptive acquisition

A. In the case of prescriptive acquisition, the intention of possession, which is the requirement for possession with intention to hold it objectively, is determined by the nature of the source of possessory right, but if the nature of the source of possessory right is not clear, it is presumed that the possessor is the possession with intention to hold it independently pursuant to Article 197(1) of the Civil Act. Therefore, the possessor is not liable to prove the nature of the source of possessory right to support the possession with the burden of proof as to the possession with the other party

B. Even if the possessor asserts his/her right to possession, such as purchase and sale, but this is not recognized, the presumption of possession with autonomy cannot be reversed or deemed as the possession with the nature of the possessor’s possession.

(c) In the case of prescriptive acquisition, possession means a possession with the intent to control the same owner, and it does not mean a legally entitled title, that is, an ownership, or an possession with the belief that he/she has ownership.

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

A.B. (C) Supreme Court Decision 90Da18838 delivered on July 9, 1991 (Gong1991, 2115). (B) Supreme Court Decision 91Da6139 delivered on July 12, 1991 (Gong1991, 2149), Supreme Court Decision 93Da42016 delivered on February 8, 1994 (Gong1994Sang, 107), Supreme Court Decision 92Da27799 delivered on October 9, 192 (Gong192, 3120), Supreme Court Decision 92Da35295 delivered on December 11, 1992 (Gong193Sang, 458), Supreme Court Decision 93Da17829 delivered on August 27, 1993 (Gong194, Dec. 13, 199)

Plaintiff (Counterclaim Defendant)

Defendant-Counterclaim Plaintiff (Attorney Ahn Byung-soo, Counsel for plaintiff-appellant)

Changwon District Court Decision 93Na4513 delivered on June 10, 1994 (Counterclaim)

The appeal is dismissed. The costs of appeal are assessed against the Defendant (Counterclaim Plaintiff).

We examine the grounds of appeal.

In the case of the acquisition by prescription, the intention of possession, which is the requirement for the possession with intention to control the owner, is objectively determined by the nature of the possessory right, but if the nature of the possessory right is not clear, it is presumed that the possessor is the possession with intention to support the possession with intention to control it pursuant to Article 197(1) of the Civil Act. Thus, the possessor is not liable to prove the nature of the possessory right, and the possessor is not responsible for proving the nature of the possessory right, and the possessor bears the burden of proving the possessor's possession with the other party who asserts the possession with the reversal of the legal presumption, and even if the possessor asserts the title of the possession, such as the sale, but is not recognized by himself, the presumption of possession with intention to hold it with intention to control it with the same intention as the owner, and in this context, the possession with intention to control it does not mean the possession with right to control it, i.e., the ownership or with belief that he has ownership (see Supreme Court Decision 90Da18838, Jul. 9, 19

According to the records, the court below acknowledged the fact that the plaintiff (Counterclaim defendant; hereinafter the plaintiff) occupied and used the part (Ga) and (c) of the land of this case by cooking evidence from December 12, 1960 to cultivating crops, such as c) in the part (Ga) and (Ga) of the judgment of the court below. The plaintiff's possession of the part (Ga), (b), and (c) of this case was presumed to continue to exist in peace and public performance with his intention, and the plaintiff's possession of the part (Ga) and (b) of this case's land of this case was occupied and used as its base at the time of the original adjudication. Since the plaintiff's possession of the land of this case was installed in around May 192 in order to obstruct the plaintiff's cultivation, the defendant (Counterclaim plaintiff; hereinafter the defendant) installed the fence of this case's land of this case and there was no error in the misapprehension of legal principles as to the presumption of the statute of limitations as to the possession of the land of this case's case, and there were no reasonable reasons to accept the plaintiff's assertion.

Therefore, the defendant's appeal is dismissed and all costs of appeal are assessed against the losing defendant. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Don-hee (Presiding Justice)