[1] Whether the presumption of possession of real estate owned by another person is reversed in a case where the possessor illegally occupied the real estate owned by another person with the knowledge that the possessor did not have any legal requirements for the acquisition of ownership at the time of commencement (affirmative)

[2] In a case where an unauthorized building site was purchased only with the knowledge of the fact that it was owned by another person, whether the presumption of autonomous possession is reversed and whether it was occupied by another person (affirmative)

[1] According to Article 197(1) of the Civil Act, an occupant of an object shall be presumed to have occupied the object with his/her intention of possession. However, in cases where it is proved that the possessor without permission occupied an immovable property owned by another person with the knowledge of the absence of such legal requirements without any legal action or any other requirements, which may cause the acquisition of ownership at the time of the commencement of possession, barring special circumstances, the possessor shall be deemed not to have the intention to reject the ownership of another person and not to possess it. Thus, the presumption

[2] In a case where, at the time of purchasing an unauthorized building, only the building was purchased with the knowledge of the fact that the site of the building was owned by another person, and occupation of the site of the building was commenced, the purchaser knowingly occupied the building without any legal act or any other legal requirements which may cause the acquisition of ownership due to its nature at the time of commencing the possession of the site of the building, and thus, the presumption that the purchaser occupied the site as the intention to own the building is broken, barring any special circumstances, such possession shall be deemed as the possession of the building.

[1] Articles 197(1) and 245(1) of the Civil Act / [2] Articles 197(1) and 245(1) of the Civil Act

[1] [2] Supreme Court Decision 95Da41208, 41215 decided Dec. 22, 1995 (Gong1996Sang, 508), Supreme Court en banc Decision 95Da28625 decided Aug. 21, 1997 (Gong1997Ha, 2501), Supreme Court Decision 96Da679 decided Feb. 10, 1998 (Gong1998Sang, 661) / [1] Supreme Court Decision 97Da18547 decided Dec. 9, 1997 (Gong1998Sang, 215), Supreme Court Decision 97Da3422 decided Feb. 10, 198 (Gong1998Sang, 6398Da63979 decided Feb. 198, 197; Supreme Court Decision 97Da68397 decided Apr. 16, 1998)

Plaintiff

Defendant

Seoul District Court Decision 97Na26370 delivered on November 7, 1997

The judgment below is reversed. The case is remanded to the Seoul District Court Panel Division.

The grounds of appeal are examined.

1. According to the reasoning of the judgment below, the court below determined that around 1964, the plaintiff purchased a building on the land in Seongbuk-gu Seoul (No. 1 omitted), Seoul (No. 284m2, which is part of the land in this case), which is owned by the defendant, from the non-party's name, and occupied the land in this case as the site for the building. The plaintiff again purchased a building on the land in this case, which is part of the land in this case, which is part of the non-party 1's above (No. 1 omitted) and 284m2, which is part of the land in this case, including the land in this case, from the non-party 1's holding around May 1971 and occupied the land in this case as the site for the building. The court below rejected the plaintiff's claim without permission for possession on the land in this case on December 31, 1984, and on the land in this case, on May 31, 1991.

2. According to Article 197(1) of the Civil Act, an occupant of an object shall be presumed to have occupied the object with his/her intention of possession. However, in cases where it is proved that the possessor occupied the real estate owned by another person without permission with the knowledge of the absence of such legal requirements without any legal act or any other requirements, which may cause the acquisition of the ownership at the time of the commencement of possession, barring any special circumstance, the possessor shall be deemed not to have an intention to reject the ownership of another and to hold it. Thus, the presumption of possession with the intention of possession is broken (see, e.g., Supreme Court en banc Decision 95Da28625, Aug. 21, 1997; Supreme Court Decision 96Da2991, Oct. 10, 197).

However, according to the records, if the Plaintiff purchased each of the above buildings on two occasions on or around 1964 and May 1971, it is an unauthorized building (No. 3, No. 1, No. 25-26; No. 9, No. 76; see, 59, etc.). As to the land of this case, which is part of the site at the time of the purchase, the ownership transfer registration was made in the name of Nonparty 2 (see, e.g., evidence No. 1, No. 18, No. 1, and No. 18), and the remainder of the building site, other than the land of this case No. 1 and No. 2, was within 92 square meters in Seongbuk-gu, Seoul ( Address No. 2, omitted), and the Plaintiff had no ownership transfer registration in the name of the Seoul Special Metropolitan City on July 23, 1975.

Nevertheless, the plaintiff's assertion is rejected on the ground that there is no evidence that the possession of the land in the part 1 and 2 of this case is an unauthorized possession, and the judgment of the court below which accepted the plaintiff's claim in this case is erroneous in the misunderstanding of legal principles as to the presumption of intention as an independent possession requirement and the possession of another owner, or in the fact-finding, in violation of the rules of evidence. The part

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

Justices Park Jong-chul (Presiding Justice)