[1] Whether the presumption of autonomous possession applies to a case where the State or a local government occupies real estate (affirmative)

[2] In a case where the possessor illegally occupied the real estate owned by another person with knowledge of the absence of a legal act or any other legal requirement which may cause the acquisition of ownership at the time of commencement of possession, whether the presumption of possession with autonomy is broken (affirmative)

[3] Whether the presumption of possession with autonomy is reversed solely on the ground that the State or a local government fails to submit documents on the procedure for acquiring land, claiming the completion of prescriptive acquisition (negative)

[4] The case holding that the presumption of possession with autonomy cannot be reversed solely on the ground that the State and the local government failed to submit evidence to acknowledge that the acquisition procedure of the public property was conducted on the land

[1] If the nature of the source of possessory right of real estate is not clear, the possessor is presumed to have occupied the possessor in good faith, peace, and public performance according to Article 197(1) of the Civil Code, and such presumption shall also apply to cases where the State or local government, which is the managing body of cadastral records, occupies the real

[2] In a case where it is proved that the possessor occupied the real estate owned by another person without permission knowing the fact that there is no legal act or any other legal requirement that can be the cause of acquiring the ownership at the time of commencement of possession without permission, barring any special circumstance, 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 of possession with the intention to own is broken.

[3] Even if the State or a local government is unable to submit documents concerning the procedure for acquiring the land claiming the completion of prescriptive acquisition, it cannot be readily concluded that the State or a local government occupied the land with the knowledge that there was another person registered in the cadastral record, etc., due to the fact that the cadastral record, etc. on the land was lost in the column of 6.25 days or that there was no other reason. In light of the circumstance and purpose of the occupation, in a case where the State or a local government appears to be unlikely to exclude the possibility that the State or a local government lawfully acquired the ownership of the land through the procedure for acquiring the public property at the time of the commencement of possession, it cannot be deemed that the State or a local government has proved that it occupied the land without permission by being aware of such circumstance without the legal requirements for acquiring the ownership. Thus, the presumption of autonomous possession

[4] The case holding that the presumption of possession with autonomy cannot be reversed solely on the ground that the State and the local government failed to submit evidence to acknowledge that the acquisition procedure of the public property was conducted on the land

[1] Articles 197 and 245 of the Civil Act / [2] Articles 197 and 245 of the Civil Act / [3] Articles 197 and 245 of the Civil Act / [4] Articles 197 and 245 of the Civil Act

[1] [3] Supreme Court Decision 2005Da36045 Decided January 26, 2006, Supreme Court Decision 2006Da28065 Decided February 8, 2007 / [2] Supreme Court en banc Decision 95Da28625 Decided August 21, 1997 (Gong197Ha, 2501) / [3] Supreme Court Decision 2005Da33541 Decided December 9, 2005 (Gong2006Sang, 114)

Plaintiff 1 and one other (Law Firm, Kim & Lee, et al., Counsel for the plaintiff-appellant)

The Republic of Korea and one other (Law Firm Barun, Attorneys Park Jae-sik et al.)

Busan High Court Decision 2006Na10293 decided June 5, 2007

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

1. In full view of the admitted evidence, the court below found that around 1912, 108 1,90 Do-dong 1090 and 308 Do-dong 1126 Do-dong 1126 and 1124 2,094 Do-dong 1124 and 1124 Do-dong 2,094 Do-dong 1091 Do-dong 2, and the above 1,305 Do-dong 1091 - around 1914 did not indicate the annexed drawing(a), (b), (e), (i) and (l) (hereinafter referred to as "the annexed drawing of the judgment of the court below") were incorporated into the road and deleted from each land cadastre, and found that there was no error in the rules of evidence finding that the plaintiff 1 died on the part of the court below as the deceased non-party 2, 1957 - 3, 1957

2. The lower court rejected the Defendants’ defense as follows: (a) there is no evidence to support that the Defendants had taken the procedure to acquire each of the instant lands as property for public use pursuant to the relevant laws and regulations; (b) there was no evidence to support that the Defendants had taken the procedure to acquire each of the instant lands as property for public use; and (c) of each of the instant lands, the Defendants’ presumption of the Defendants’ autonomous possession of each of the instant lands was broken out, on the ground that the Republic of Korea had completed the registration of ownership preservation on December 6, 200 after the registration in the cadastral record only on January 7, 200; and (e) under the provisions of the Acts and subordinate statutes on the possession of non-principals in the process of taking the procedure; and (e) the portion of each of the instant lands was registered in the cadastral record or the registration of ownership preservation has not been completed until now; and (e) the Defendants were deemed to have occupied each of the instant lands without a specific title from around 191 to August 3, 196.

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

If the nature of the source of possessory right of real estate is not clear, the possessor is presumed to have occupied the land in good faith, peace, and public performance by the intention of ownership under Article 197(1) of the Civil Act, and such presumption applies likewise to cases where the State or a local government occupies the real estate, which is a managing body of the cadastral record, with the knowledge of the absence of such legal requirements, such as a juristic act which may cause the acquisition of ownership at the time of the commencement of possession. In addition, barring any special circumstance, the possessor shall be deemed not to have rejected another’s ownership and have no intention to occupy it. Thus, the presumption of possession with the 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 prescriptive acquisition, it cannot be readily determined that the State or a local government has occupied the land without permission and its intention to acquire it.

According to the records, each of the lands of this case was incorporated into a road around 1914, and was deleted from each land cadastre. Since around that time, from August 3, 1966, each of the lands of this case was provided as part of the national highway 31 line by the Defendant Republic of Korea as part of the national highway 31 line by the Defendant Republic of Korea, and was occupied and managed by the Defendant Busan Metropolitan City, and continued to be provided as a general passage to the present time. Since there was no official record or registration book on each of the lands of this case after incorporation into the above road does not exist, it is difficult to conclude that each of the lands of this case was owned by the Defendants without permission, since it is difficult to establish that each of the lands of this case was owned by the Defendants as well as the land of this case, and that (a), (b), and (l) were newly registered in the official record or the registration of ownership was not completed on December 6, 202. Thus, in light of the legal principles as seen earlier, each of the lands of this case was not owned by the Defendants.

Nevertheless, the court below determined that the defendants' possession of each of the lands of this case constitutes an unauthorized possession and thus the presumption of autonomous possession was broken, and rejected the defendants' defense of the prescription period for the acquisition of possession. Thus, the court below erred by misapprehending the legal principles on the reversal of presumption of autonomous possession, and such illegality affected the judgment.

3. Therefore, without examining the remaining grounds of appeal, 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)