[1] In a case where a redevelopment project is terminated without the establishment of a management and disposal plan and the public notice of sale order in the execution of an urban redevelopment project under the former Urban Redevelopment Act, whether the owner of the land in the redevelopment area acquires the ownership of the newly created site

[2] The case where the presumption of possession with independence is reversed

[1] Article 47 of the former Urban Redevelopment Act (amended by Act No. 3409 of Mar. 31, 1981) provides that "site and constructed facilities shall be disposed of or managed by the management and disposal plan." Article 49(1) provides that "any person who purchases a site or constructed facilities according to the management and disposal plan publicly notified under Article 41(5) shall acquire the ownership of the site or constructed facilities on the following day after the public notice of the sale in lots under Article 48(5) shall be given." Since the issue of whether the owner of land, etc. in the redevelopment area acquires the ownership of the site created as a result of the execution of the redevelopment project is determined by the sale in lots disposition according to the management and disposal plan, even if there was a public notice of the completion of redevelopment project under Article 48(3) of the former Urban Redevelopment Act, the owner of land, etc. in the redevelopment area may not acquire the ownership of the newly created site as a result of the execution of the redevelopment project.

[2] The issue of whether the possessor’s possession is an independent possession with the intention of possession or with the intention of possession is determined by the internal deliberation of the possessor, not by the internal deliberation of the possessor, but by the nature of the title that caused the acquisition of possession, or by all circumstances related to the possession. Thus, the fact of the possessor’s acquisition based on the title that the possessor is deemed to have no intention of ownership due to its nature is proved, or cannot be viewed as the possessor’s possession with the intent of exercising exclusive control like his own property by excluding another’s ownership. In other words, the presumption is broken down even in cases where it is proved that the possessor does not have an intention of refusal if the possessor expresses his/her intention of not taking ordinary possession or does not act that the possessor would have taken as a matter of course if he/she did not act with the actual owner.

[1] Articles 47 and 49(1) of the former Urban Redevelopment Act (amended by Act No. 3409 of March 31, 1981) / [2] Articles 197(1) and 245(1) of the Civil Act

[2] Supreme Court en banc Decision 95Da28625 delivered on August 21, 1997 (Gong1997Ha, 2501), Supreme Court Decision 98Da10618 delivered on June 23, 1998 (Gong1998Ha, 1950), Supreme Court en banc Decision 97Da37661 delivered on March 16, 200 (Gong200Sang, 9Da56765 delivered on March 24, 200 (Gong2000Sang, 1042), Supreme Court Decision 9Da72743 delivered on February 26, 200 (Gong202, 7777), Supreme Court Decision 2000Da37529 delivered on March 16, 2005, Supreme Court Decision 2005Da7374529 delivered on March 26, 2005)

Plaintiff (Law Firm, Kim & Lee, Attorneys Gangnam-soo et al., Counsel for the plaintiff-appellant)

Busan Metropolitan City Urban Development Corporation and three others (Attorneys Kim Yong-dae et al., Counsel for the plaintiff-appellant)

Busan High Court Decision 2002Na14198, 14204, 14211, 14228 delivered on June 30, 2004

The appeal is dismissed. The costs of appeal are assessed against the Plaintiff (Appointed Party).

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

Article 47 of the former Urban Redevelopment Act (amended by Act No. 3409 of March 31, 1981) provides that "site and constructed facilities shall be disposed of or managed by the management and disposal plan." Article 49(1) provides that "any person who purchases a site or constructed facilities in accordance with the management and disposal plan publicly notified under Article 41(5) shall acquire the ownership of the site or constructed facilities on the date following the public notice of the sale in lots under Article 48(5) shall acquire the ownership of the site or constructed facilities." Since whether the owner of the land, etc. in the redevelopment area acquires the ownership of the site created as a result of the execution of the redevelopment project is determined by the disposal and disposal plan, even if there was a public notice of the completion of redevelopment project under Article 48(3) of the former Urban Redevelopment Act, the owner of the land, etc. in the redevelopment area may not acquire the ownership of the newly created site as a result of the execution of the redevelopment project.

The court below determined that the plaintiffs did not acquire the ownership of each of the lands of this case despite the fact-finding that the redevelopment project of this case was completed without the establishment of the management and disposal plan and the announcement thereof, after compiling the adopted evidence, since it was completed without the completion of the redevelopment project and the cancellation of the district of this case. In light of the records, the court below's fact-finding and determination are just and there were no errors in the misapprehension of legal principles as to the legal nature of the sale disposition of this case under the former Urban Redevelopment Act, or in incomplete deliberation or omission of judgment,

2. Regarding ground of appeal No. 2

The issue of whether the possessor's possession is an independent possession or a non-owned possession with no intention of ownership is determined by the internal deliberation of the possessor, not by the internal deliberation of the possessor, but by the nature of the title that caused the acquisition of possession or by all circumstances related to the possession. Thus, it is proved that the possessor acquired the possession on the basis of the title that the possessor has no intention of ownership in view of its nature, or it cannot be deemed that the possessor acquired the possession with an intention of exercising exclusive control like his own property by excluding the ownership of another person or by exercising exclusive control as his own property. In other words, the presumption is broken down even in cases where it is proved by circumstances that the possessor did not act as a real owner if he did not act as a matter of course, such as where the possessor expressed his intention of not taking ordinary possession if he did not act as the owner, or if he did not act as the owner, he did not act as the owner.

According to the records, 5 Dong-dong, Busan, 491 Dong-dong, 6 Dong-dong, 1445-45 Dong-dong, including each of the land of this case, were state-owned land and were scattered, and the plaintiffs or the non-party who sold the housing to the plaintiffs were aware that each of the land of this case was state-owned land at the time of commencement of possession or succession, and the head of Busan Metropolitan City knew that the land of this case was owned by state-owned land at the time of commencement of possession or succession, and notified the residents of the redevelopment district of this case to redeem the land in the long term after concluding the sale contract with Busan City. The plaintiffs or the non-party who sold the housing to the plaintiffs were aware of such contents and did not own each of the land of this case after newly constructing the housing on each of the land of this case. After the completion of redevelopment project of this case, the plaintiffs' intention to own the land of this case or the non-party's new sale of the land of this case cannot be seen as being objectively owned by the plaintiffs and the non-party.

3. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices who reviewed the appeal.

Justices Yang Sung-tae (Presiding Justice)