2014Da234087(d) Return of unjust enrichment

2014Da234094 (Counterclaim) Transfer of Ownership

It is as shown in the attached list of plaintiffs.

person

Youngcheon-si

Seoul Southern District Court Decision 2014Na52396 (Main Office), 2014NaNa decided November 6, 2014

52402. Judgment

April 23, 2015

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

The grounds of appeal are examined.

1. If the nature of the source of possessory right of real estate is not clear, the possessor is presumed to have occupied the real estate in good faith, peace, and public performance with the intention of possession under Article 197(1) of the Civil Act. However, in a case where it is proved that the possessor occupied the real estate owned by another person without permission knowing the existence of any legal act or other legal requirements that may cause the acquisition of the ownership at the time of the commencement of possession, barring any special circumstance, the possessor is deemed not to have an intention to occupy the real estate. Thus, the presumption of possession with the intention to own is broken down, barring any special circumstance. Such legal principle likewise applies to the possession by the State or a local government, which is the managing body of cadastral records, etc., but even if the State or a local government fails to submit documents concerning the procedure for the acquisition of land claiming the completion of the acquisition of prescription, it is difficult to view that the State or a local government has made an endeavor to exercise the ownership on the cadastral record, etc. after the commencement of possession, together with other land use or disposal relations, etc.

2. According to the reasoning of the lower judgment, the lower court acknowledged the facts as indicated in its reasoning based on the evidence adopted, and rejected the Defendant’s assertion on the prescriptive acquisition on the ground that: (a) it appears that the Defendant occupied and used each of the instant land without permission without undergoing the procedure for acquiring public property without permission, and therefore, it cannot be deemed that the Defendant occupied each of the instant land with the intent to own the instant land, on the ground that: (b) the former land cadastre was recorded as the owner and the Defendant did not contain any description supporting the Defendant’s acquisition of ownership of each of the instant land; and (c) the Defendant purchased each of the instant land.

3. However, it is difficult to accept such a determination by the lower court for the following reasons.

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

1) At the time of the original adjudication, the land in the attached Forms 1 and 2 was divided from July 25, 1938, and on the attached Form 3 at the time of the original adjudication on June 20, 1940, the land in the attached Form 3 was changed to the road on the same day as each of the divided lands at the time of the original adjudication. At the time of the original adjudication, the land in the attached Forms 1 and 3 was changed to the road on the same day. At the time of the original adjudication, the land in the attached Form 2 was changed to the road category on October 21, 1970, and the land in the attached Form 2 was changed to the road category on the attached Form 1 (or 2 and 3 respectively, at the time of the original adjudication).

2) Each of the instant lands is the land transferred to the starting point where 2-1 lines are combined with 2-1 lines among the urban planning maps connecting Yongcheon-si and Young-si, and 2-4 lines are being used as roads since each of the aforementioned divisions was divided.

3) On July 1, 1937, the land of this case 1 and 2 was included in the road that connects AU and AV erroneous streets in the form of private lines, and the land belonging to the above road line on the same day as the land of this case 1 and 2 was divided into the shape of a private line. The land of this case 3 is included in the road crossing a road leading to AV erroneous distance and AU and vertical length, and is included in the road crossing a road, and the land belonging to the above road line was divided into the shape of a private line on the same day as the land of this case 3 divided. The land of this case was also included in the road crossing a road that leads to a vertical line. The land of this case was divided into the form of a private line, and most of the land cadastres of divided lands are written in the history column.

4) On the other hand, with respect to the 20 square meters of the mother land of this case remaining after the division of each land of this case, the land category of this case was changed to the site on December 20, 1949, and the active ownership was exercised on March 10, 1950, including disposal of each of the land of this case to a third party on the same day after completing the registration of preservation of ownership in its own name, but no disposition was made after the division as above, and there was no indication of the circumstances that asserted ownership, such as demanding compensation for using each of the land of this case as a road before the filing of the lawsuit of this case.

5) There was a legal compensation procedure that allows the owner of each of the instant lands to receive compensation when an administrative agency expropriates a private person’s land according to the laws and guidelines on the construction of a road enforced during the Japanese occupation period, the time of incorporation of each of the instant lands into a road, compensation for the land incorporated into the road, and cadastral adjustment

6) The data on the procedure for acquiring property for public use or compensation for the land whose land category was changed to a road on the same day including each of the instant land do not remain. At the time of the Daegu 10th Incident, there was a fire and other damage to the government office located in Yongcheon around October 1946.

B. Examining these facts and circumstances in light of the legal principles as seen earlier, even though the old land cadastre prepared at the Japanese occupation point is not lost and the Defendant did not submit the documents on the acquisition procedure of each of the instant lands, it is reasonable to view that the Defendant occupied each of the instant lands without permission, and even if each of the instant lands was divided and provided as a road, and the land category was changed and sold to a third party after the change of land category, but there was no exercise of ownership on each of the instant lands. However, the possibility that the documents on the acquisition procedure of each of the instant lands were destroyed due to the Daegu 10th case, etc. at the time of being incorporated into the road. Thus, it is difficult to view that the Defendant occupied each of the instant lands without permission, and rather, the lower court erred by misapprehending the legal principles on the evidence and experience and free evaluation of evidence by exceeding the bounds of the principle of free evaluation of evidence against the Defendant’s intention to possess each of the instant lands for more than 20 years.

4. Therefore, the lower judgment is reversed, and the case is remanded to the lower court. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Jae-soo

Justices Kim Yong-deok

The Chief Justice Park Jae-young

Justices Kim Gin-young

A person shall be appointed.