(영문) 대법원 2015.6.24.선고 2014다234513 판결

1. If the nature of the source of possessory right of real estate is not clear, the possessor shall be presumed to have occupied in good faith, peace, and public performance with his/her own will pursuant to Article 197(1) of the Civil Act. Such presumption is equally applied to cases where the State or a local government, which is the managing body of the cadastral record, etc., occupies the right to possession independently, such as sale and purchase or donation, but such presumption is not reversed solely for such reason, or the possession is not deemed to have been occupied as the owner (see, e.g., Supreme Court Decisions 9Da72743, Feb. 26, 2002; 2006Da28065, Feb. 8, 2007).

Therefore, even if the State, etc. fails to submit documents concerning the procedure for acquiring land claiming the completion of prescriptive acquisition, taking into account the following circumstances: (a) the course and purpose of the possession; (b) whether the State, etc. has endeavored to exercise the ownership in the cadastral record, etc. after the State, etc. commenced possession; and (c) the use or disposal of other divided land; and (b) the possibility that the State, etc. lawfully acquired the ownership by undergoing the procedure for acquiring public property at the time of the commencement of possession cannot be ruled out, the presumption of possession by the State, etc. is readily denied and is not recognized as an unauthorized possession (see, e.g., Supreme Court Decisions 2010Da94731, 94748, Mar. 27, 2014; 2012Da30168, Mar. 27, 2014)

2. According to the reasoning of the judgment below, on December 5, 1975, the court below determined that the plaintiff's possession of each of the lands of this case was presumed to be autonomous possession on the ground that the plaintiff changed the land category of land cadastre B No. 116 (hereinafter "the land of this case") and C 213 (hereinafter "the two lands of this case") into the road and provided it to the general public for traffic until then. However, on the closed land register and land cadastre of this case, the defendant (appointed party; hereinafter "the appointed party") and the designated parties are merely stated as the owner, and there was no indication to support the acquisition of the plaintiff's ownership, and there was no objective material to support the plaintiff's lawful acquisition procedure or possibility of such acquisition, and there was no lack of objective circumstances that the plaintiff could obtain with respect to the reasons for non-submission.

3. However, it is difficult to accept the above determination by the court below for the following reasons.

A. The reasoning of the lower judgment and the evidence duly admitted by the lower court reveal the following facts and circumstances.

① On March 27, 1970, the network D acquired ownership of 824 Ep. B and C, 95 square meters. On July 2, 1973, the Minister of Construction and Transportation formulated an H-ro Urban Planning (Financial Expenses) on July 2, 1973, and decided to change the surrounding areas of each land into 30 meters wide.

② On December 5, 1975, the above-mentioned No. B No. 824 was divided into the land of this case and K No. 708, and the above C No. 995 was divided into the land of this case and L No. 782, respectively. Each of the land of this case was changed to a road on the same day, and the land of this case was constructed on each of the land of this case and used as a road until now.

③ On the other hand, the above K 708 and L 782 were transferred to M on September 2, 197, and the ownership was transferred to Samdo Housing Co., Ltd. on April 12, 1995 through N. The remaining lands, other than each of the instant lands, among the lands divided at Nos. 824 and C 95, were sold to third parties. However, each of the instant lands was not disposed of at least 40 years, and the network D died on October 10, 1999, and the inheritance registration under the name of the Defendant and the designated parties was not completed.

④ The deceased D or his heir, the Defendant, and the designated parties did not raise any objection or demand compensation to the Plaintiff who occupies each of the instant lands as a road, even though they seem to have been well aware of the fact that each of the instant lands was used as a road after the subdivision thereof. The Plaintiff did not impose property tax on the network D or the Defendant and the designated parties after the land category of the instant lands was changed to a road.

B. Examining these circumstances in light of the legal principles as seen earlier, even if the Plaintiff failed to submit the documents regarding the acquisition procedure of each of the instant lands, it is highly probable that the Plaintiff et al. had gone through legitimate procedures for acquiring ownership of each of the instant lands at the time of taking into account the developments leading up to the Plaintiff’s possession, the purpose of occupation, and the relationship between use and exercise of rights, etc., of each of the instant lands and other lands divided with each of the instant lands. Therefore, it is difficult to view that the Plaintiff’s possession of each of the instant lands is an unauthorized possession, and

Nevertheless, the lower court determined that the Plaintiff’s possession of each of the instant lands was the possession of the Plaintiff, solely based on its stated reasoning, and thus, it erred by misapprehending the legal doctrine on the presumption of possession with autonomy.

4. 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.