A. Whether the peace and public performance of possession is lost solely by the fact that there was an objection to the illegal possession or legal dispute over the ownership of the object in possession

(b) Where the obligation to register the transfer of ownership due to the expropriation of the land, the prescriptive acquisition of which has been completed, becomes impossible, whether the landowner can claim the return of the compensation for expropriation received by exercising the right to claim for compensation

A. The possessor is presumed to possess possession in a peaceful and public performance manner with the intention of possession, and the peace in possession refers to the possession that does not use a strong act that is not legally acceptable for the possessor to acquire or hold such possession, and the term “public performance” refers to the possession that is not a possession. Thus, even if the possession received an objection from the person who asserts that it was illegal or there was legal dispute between the parties as to the ownership of the object, such fact alone cannot be said to lose the peace and public performance of such possession.

B. In a case where the obligation to register the transfer of ownership on the ground of the completion of the acquisition by prescription becomes impossible due to expropriation of the land, the claimant for the registration of the transfer of ownership shall be deemed as the exercise of the so-called claim, and the landowner may claim the return of the compensation for expropriation received as compensation

(a) Articles 197(1) and 245(b) of the Civil Act;

A. Supreme Court en banc Decision 81Da6983 delivered on September 28, 1982 (Gong1982,105), 92Da6983 delivered on April 24, 1992 (Gong1992,1691), 92Da5271 delivered on May 25, 1993 (Gong1993Ha, 1850), Supreme Court Decision 92Da4581,4598 delivered on May 12, 1992 (Gong192,1849)

[Defendant-Appellee] Plaintiff 1 et al.

Defendant 1 and four defendants et al., Counsel for the plaintiff-appellant-appellee

Suwon District Court Decision 93Na6888 delivered on April 8, 1994

The part of the judgment of the court below regarding the conjunctive claim against the defendant 1, 2, 3, and 5 is reversed, and that part of the case is remanded to the Suwon District Court Panel Division.

The remaining appeals by Defendants 1, 2, 3, and 5 and by Defendants 4 are dismissed, and all costs of appeal are assessed against the Defendants.

We examine the grounds of appeal.

1. The possessor is presumed to possess possession in a peaceful and public performance manner with the intention of possession. The possessor is presumed to possess possession in a peaceful and public performance manner, and the possessor is not a person who uses a diverative act that is not legally acceptable for the acquisition or possession of possession, and the possession in a public performance refers to the possession that is not a person who uses a diverative act. Thus, even if there is a legal dispute between the parties as to the illegal possession and the ownership of the possession, it cannot be said that the peace and public performance of the possession is lost immediately (see Supreme Court Decision 92Da6983 delivered on April 24, 192, 192), and such a reason alone cannot be viewed as a conversion of possession into a diver possession. Accordingly, the judgment below is justifiable to the purport that the possession of the land in this case was converted into a divers possession or the peace and public performance status was broken.

In addition, examining the records of this case, the court below's rejection of the defendants' assertion that the plaintiff's wife did not own the land of this case and the progress of prescriptive acquisition on the land of this case was suspended by recognizing that the land of this case was not owned by the plaintiff.

Therefore, the judgment of the court below is not erroneous in the misapprehension of legal principles like the theory of lawsuit or in the misconception of facts against the rules of evidence.

2. According to the reasoning of the judgment below, the court below acknowledged the following facts based on macroscopic evidence: the Defendants: (a) on March 4, 1994, when the instant case was pending in the court of first instance (which appears to be a clerical error in March 4, 1993) (the Nonparty’s testimony) in collusion with Defendant 1 and Defendant 4, who was the mother of Defendant 5, in collusion with Defendant 2, Defendant 3, and Defendant 5; (b) the Defendants’ share in the Gyeonggi-si ( Address 1 omitted); and (c) Defendant 4’s share in each of the above lands under Defendant 1 and Defendant 4’s name, as purchased each of the above lands under the name of Defendant 381 and Defendant 4; and (d) on each of the above lands, each of the above sales contracts concluded between Defendants 1, 2, 3, and 5, and Defendant 4 actively participated in Defendant 1’s unlawful acts; and (d) based on the records and reasoning of each of the above facts, there were no errors in the judgment below.

3. However, according to the reasoning of the judgment below, the court below acknowledged the fact that the registration of ownership transfer was made in the name of the non-party Ansan-gun on July 13, 1993 (which appears to be a clerical error in the name of July 1993) with respect to the above (number 2 omitted) large 47 square meters and 33 square meters on the above (number 3 omitted), which was continued in the judgment of the court below, based on macro evidence, and held that if the registration of ownership transfer was made in the name of Ansan-gun on the above land, unless the registration of ownership transfer was made in the name of Ansan-gun on the above land, the obligation to register ownership transfer for the plaintiff on the ground of the completion of the acquisition by prescription for the above land was impossible and dismissed, and further, the above defendants are not liable for damages suffered by the plaintiff due to the impossibility of performing the obligation to compensate for damages due to the above land, and therefore, the court below erred in the misapprehension of legal principles as to the above Defendants' liability to compensate for damages due to the above land expropriation of land.

However, in the instant case, where the obligation to transfer ownership on the ground of the completion of the prescriptive acquisition has become impossible due to expropriation of the land, as seen above, the claimant for ownership transfer registration shall be deemed to be entitled to claim the return of the compensation paid in consideration of the land as the exercise of the so-called claim (see Supreme Court Decision 92Da4581, 4598 delivered on May 12, 192, 1992), and when the plaintiff's application for the change of the conjunctive claim and the cause of the claim as of February 18, 1994, the plaintiff claims a preliminary claim for the payment of the compensation amount equivalent to the above compensation amount on the basis of the liability for damages caused by unjust enrichment or impossibility of performance. Thus, the court below should decide on the claim by deeming that the unjust enrichment means one of the remaining selective claims, and whether the claim for the return of the compensation was included in the purport of claiming the return of the compensation.

4. Therefore, the part of the judgment of the court below regarding the conjunctive claim against Defendants 1, 2, 3, and 5 is reversed, and that part of the case is remanded to the court below. The remaining appeals by the above Defendants and the appeals by Defendants 4 are dismissed. The costs of appeal to the Supreme Court are assessed against the Defendants. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Yong-hun (Presiding Justice)