Whether the presumption of autonomous possession of the land can be reversed solely on the ground that the state, etc. failed to submit documents on the procedure for acquiring the land for the completion of acquisition by prescription (negative)

Article 197(1) of the Civil Act

Supreme Court en banc Decision 95Da28625 delivered on August 21, 1997 (Gong1997Ha, 2501) Supreme Court Decision 2005Da33541 Delivered on December 9, 2005 (Gong2006Sang, 114)

Plaintiff 1 and nine others (Attorney Yu Young-young, Counsel for the plaintiff-appellant)

Korea

Seoul High Court Decision 2008Na94198 decided May 15, 2009

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

We examine the grounds of appeal.

If the nature of the source of right to possess real estate is not clear, the possessor shall be presumed to possess it in good faith and to have occupied it in good faith. Such presumption applies likewise to cases where the State or a local government occupies real estate without permission, even though the State or a local government, which is the managing body of the cadastral record, etc., knowing the fact that the possessor has no legal requirements, such as a juristic act which may cause the acquisition of ownership at the time of the commencement of possession, and without permission, barring any special circumstances, the possessor shall be deemed to have rejected another’s ownership and does not have an intention to occupy it. Thus, the presumption of possession with an intention to own shall be deemed to have been broken (see, e.g., Supreme Court en banc Decision 95Da28625, Aug. 21, 1997). Meanwhile, even if the State or a local government fails to submit documents concerning the procedure for the acquisition of land for acquisition of the prescriptive acquisition, it cannot be readily determined that the State or a local government, with the knowledge of possession or ownership of land without permission, can not be determined by the State or local government.

The court below acknowledged the facts as stated in its reasoning based on its adopted evidence, and rejected the defendant's defense that the defendant's possession of the land of this case and the prescription acquisition of the land of this case were completed, since the land of this case was transferred to the road from around April 13, 1915 to the village, without any evidence to acknowledge that the owner of the land of this case was the owner of the land of this case, although it appears to have been used as the village road from around April 13, 1915, and there was no evidence to support that the owner of the land of this case was the owner of the ship of this case, and even if the owner of the land of this case was the owner of the ship of this case, there was no document related to the transfer of the land of this case to the road of this case, the owner of the ship of this case without due process of acquisition of the land of this case and without due knowledge of such circumstances.

However, it is difficult to accept such measures by the court below for the following reasons.

According to the records, the land survey map drawn up around September 191, 191, was marked as one parcel at 1267 1,548, Namyang-gun, Gyeonggiwon-gun, 1267 (hereinafter “pre-division”). However, as the land survey institute was added to April 13, 1915, the “road” (this part is the land immediately), was indicated as being divided into “1267-1” and “1267-2,” and the pre-division area was divided into “1267-9” and “1267-2,” and the land was marked as one parcel connected to the remaining part of the land at 160-4, 1267, 197, 197, 207, 197, 206, 197, 67, 196, 206, 196, 206, 196, 207, 206, 167, 7, 67, 3, 3, etc.

Examining these circumstances in light of the legal principles as seen earlier, it is reasonable to deem that the instant land was occupied and managed by the State as a road, and so long, insofar as there was no official cadastral record, etc. on the instant land, it cannot be readily concluded that the Defendant occupied the instant land with the knowledge that there was a separate owner of the instant land. Considering the circumstance that the Defendant occupied the instant land and the purpose of occupation, etc. of occupation, it cannot be easily ruled out that the possibility of the State’s lawful acquisition of ownership according to the acquisition procedure of public property at the time when the instant land was divided from the land before partition and incorporated into a road on April 13, 1915, when the land was incorporated into a road. Therefore, it is difficult to deem that the Defendant’s possession of the instant land was an unauthorized possession. Accordingly, even if the Defendant did not submit the documents on the acquisition procedure of the instant land, it cannot be said that the presumption of autonomous possession of the instant land by the

Nevertheless, the court below rejected the defendant's defense against the prescriptive acquisition on the ground that the defendant's possession of the land of this case was broken by deeming that the defendant's possession of the land of this case constitutes an unauthorized possession, on the grounds that the defendant cannot be deemed to have occupied the land of this case or there is no evidence to prove that the defendant had taken a lawful procedure for acquiring the land of this case at the time of the commencement of possession. The court below erred in the misapprehension of the legal principle as to the reversal of the presumption of possession with autonomy,

Therefore, the judgment of the court below is reversed and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Ji-hyung (Presiding Justice)