The relationship between the assertion of prescriptive acquisition of real estate share and the objective requisition of possession;

Article 245 of the Civil Act

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Park Jong-soo et al., Counsel for plaintiff-appellant)

Republic of Korea (Government Law Firm Corporation, Attorney Seo-young, Counsel for defendant-appellant)

Defendant 1 and one other (Attorney Cho Jae-soo, Counsel for the defendant-appellant)

Daegu District Court Decision 2017Na315657 Decided June 27, 2018

The part of the lower judgment against Defendant 2 is reversed, and that part of the case is remanded to the Daegu District Court Panel Division. Defendant 1’s appeal is dismissed. The costs of appeal by Defendant 1 are assessed against Defendant 1.

The grounds of appeal are examined.

1. As to Defendant 2

A. In a case where the party who asserts that the right of share in the real estate has been acquired by prescription, asserts that the specific part of the entire land is acquired by prescription, there should be an objective proof sufficient to recognize that the specific part of the land belongs to his possession. However, in a case where the party asserts that the right of share in the real estate has been acquired by prescription on the ground that the part of the land has been occupied by possession by possession by intention of others, and that the other part of the land has been occupied by possession by possession by intention of others, there is no objective proof of proof (see Supreme Court Decision 74Da1877, Jun. 24, 1975).

B. 1) The lower court rejected Defendant 2’s defense by prescription on the ground that there was no assertion or proof as to the fact that Nonparty 1 occupied a specific portion of the real estate after the instant partition.

2) However, it is difficult to accept the above judgment of the court below in the following respect.

A) Review of the reasoning of the lower judgment and the record reveals the following facts.

(1) Defendant 2 asserts that Nonparty 1 purchased the share of 128/1078 of the real estate after the instant partition in order to use it as a road and a parking lot to which he/she belongs.

(2) The time when Nonparty 1 acquired the ownership of the share of 128/1078 out of the real estate after the division of this case was made on June 25, 2003. At the time, the copy of the register was recorded as Nonparty 1’s address as “Seoul-do Cheong-do Cheong-do Cheong-do,” and the corresponding road name address is the corresponding address.”

(3) Defendant 2 succeeded to the above shares from Nonparty 1, and Defendant 2’s domicile is “Seoulbuk-do, Cheongbuk-do ( Address 2 omitted).”

(4) After the instant partition, the real estate is currently used as a road and parking lot, and the real estate is located on the ground of the Cheongbuk-do, Gyeongbuk-do, adjacent to the real estate after the instant partition. In light of the shape of the real estate after the instant partition and the location relationship with the above-story housing, the possibility that the entire real estate, not the specific portion after the instant partition, functions as the passage route and parking lot of the above-story housing cannot be ruled out.

B) According to the above, Defendant 2 asserted that, after the division of this case, Nonparty 1 occupied the entire part of the real estate as the passage route and parking lot of the above single-story housing, and after the death of Nonparty 1, the heir had occupied the real estate in the same way after the division of this case. On the premise that the heir had occupied the real estate in the same way after the division of this case, the prescriptive acquisition of the registry was completed.

C. Nevertheless, the lower court rejected Defendant 2’s defense of the acquisition by prescription on the ground that there was no assertion or certification as to the fact that Nonparty 1 occupied a specific part of the real estate after the division of this case without examining whether Defendant 2 satisfies the requirements for the acquisition by prescription on the share of 128/1078 of the real estate after the division of this case. In so determining, the lower court erred by misapprehending the legal doctrine on the acquisition by prescription, thereby failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment. The allegation in the grounds of appeal

2. As to Defendant 1

The lower court rejected Defendant 1’s defense of acquisition by prescription, while it reversed Nonparty 2’s presumption of possession of real estate prior to the instant partition.

In light of the relevant legal principles and records, the above determination by the court below is just, and contrary to what is alleged in the grounds of appeal, the court below did not err by misapprehending the legal principles on the presumption of autonomous possession, or by failing to exhaust

3. Conclusion

Therefore, the part of the lower judgment against Defendant 2 is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. Defendant 1’s appeal is dismissed, and the costs of appeal by Defendant 1 are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Seon-soo (Presiding Justice)