2019Da226838 Removal, etc. of buildings

A

Law Firm Effectivewon, Counsel for the plaintiff-appellant

Attorney Park Tae-ok

C

Law Firm LLC et al., Counsel for defendant-appellant

[Defendant-Appellant]

Suwon District Court Decision 2018Na70875 Decided April 11, 2019

August 14, 2019

The part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the Suwon District Court Panel Division.

The grounds of appeal are examined.

1. From the prescriptive acquisition of real estate, whether the possessor’s possession is the possession with the intention of possession, or without the intention of possession, should be determined not by the internal deliberation of the possessor, but by the nature of the title that caused the acquisition of the possession or by all circumstances related to the possession. However, if the nature of the possessor’s possession is unclear, it is presumed that the possessor has possession with the intention of possession pursuant to Article 197(1) of the Civil Act. As such, the possessor is not liable for proving that the possessor himself/herself is the possession with the intention of possession, and bears the burden of proving that the possessor is the possession with the intention of possession with the intention of possession. Therefore, even if the possessor voluntarily claims the title of possession, such as the sale, even if it is not recognized, it cannot be deemed that the presumption of possession with the reason alone is reversed or that the possessor is the owner with the intention of possession with the intention of possession (see, e.g., Supreme Court Decision 2013Da43529, Oct. 11, 2013).

2. Review of the reasoning of the lower judgment and the evidence duly admitted and examined by the lower court reveals the following facts.

A. On January 9, 1985, the Defendant entered into a sales contract with D and the instant land registered as the ownership in its land cadastre as KRW 942,700, and paid D the full purchase price at that time.

B. Although the Defendant delegated the application for the transfer registration of ownership to K of the instant land to a judicial clerk, the time and reason for the application for the transfer registration of ownership in the name of the Defendant was rejected.

C. On July 1, 1985, the registration of transfer of ownership in D’s name was cancelled and the registration of ownership was restored in F’s name on the land cadastre of this case.

D. The Defendant, upon delivery of the instant land as a result of the execution of the above sales contract, owns the instant land on its ground, and has possessed the instant land up to now.

3. In full view of the above facts and generally, the real estate buyer’s delivery of documents and real estate necessary for the registration of transfer of ownership from the seller while paying the sales price to the seller, and there is no special circumstance that the Defendant could promptly deliver the instant land, it is reasonable to deem that the Defendant paid the sales price to D and received documents necessary for the registration of transfer of ownership and possessed the instant land in exchange for transfer of ownership. It is difficult to view that the Defendant occupied the instant land with the knowledge that the sales contract entered into between the Defendant and D becomes null and void and that the Defendant could not lawfully purchase the instant land.

4. Nevertheless, the lower court rejected the Defendant’s defense of the acquisition by prescription, solely based on the grounds indicated in its reasoning, on the ground that the Defendant’s application for the registration of ownership transfer was made at the time of the commencement of possession of the instant land, and thus, he did not have the right to dispose of the instant land lawfully, and thus, he did not have the right to dispose of the instant land. The lower court erred by misapprehending the legal doctrine on possession independently, or by failing to exhaust all necessary deliberations as to the Defendant’s intent to own the instant land, thereby adversely affecting

5. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Noh Jeong-hee

A person shall be appointed.