In a case where a building is constructed on one’s own site and the neighboring land is invaded to a considerable extent beyond the degree of an ordinarily acceptable error in construction, the nature of the owner’s possession of the land in the affected part (=the owner’s possession)

Articles 197(1) and 245(1) of the Civil Act

Supreme Court Decision 96Da41335 delivered on January 24, 1997 (Gong1997Sang, 644) Supreme Court Decision 98Da32878 delivered on November 10, 1998 (Gong1998Ha, 2843 delivered on May 25, 1999) Supreme Court Decision 98Da62046 delivered on May 25, 199 (Gong199Ha, 1258), Supreme Court Decision 2000Da42977, 42984, 4291 delivered on December 8, 2000 (Gong201Sang, 264)

Plaintiff (Law Firm Affiliated, Attorneys Lee Young-young et al., Counsel for the plaintiff-appellant)

Defendant (Attorney Kang Yong-soo, Counsel for defendant-appellant)

Incheon District Court Decision 2008Na8379 Decided November 13, 2008

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

The grounds of appeal are examined.

1. According to the reasoning of the judgment below, the court below acknowledged the following facts: (a) the Plaintiff constructed a 1st floor, 138.92 square meters in house and 25.65 square meters in store of 138.92 square meters in house and 1st floor block store of 138.65 square meters (hereinafter “the building in this case”) over the ground of 4,562 square meters in Kimpo-si, Kimpo-si, Kimpo-si, 1976, which was owned by the Plaintiff, for the purpose of owning and using the building in this case, 420 square meters among the forest owned by the Defendant, as the site for the building in this case and the marina, passage, etc. attached thereto; and (b) determined that the Plaintiff’s possession is presumed as an autonomous possession.

2. However, the lower court’s determination is difficult to accept for the following reasons.

It is reasonable to view that a person who intends to build a new building on his/her own site is ordinarily aware of the fact that the building was built on his/her own site to the extent that it did not accurately verify the boundary line of the adjoining land and that it did not result in an error, so long as it was caused by an error, it cannot be readily concluded that the occupancy of the adjoining land is not based on the intention of ownership. However, since a person who intends to build a new building on his/her own site generally confirms the location and area of the site in advance by drawing, etc. the location and area of the site where the building is located, if the area of the building is beyond that of the construction ordinarily capable, and exceeds that of the construction, it is reasonable to view that the owner of the building was aware of the fact that the building was built on his/her adjoining land in consideration of the nature of the title of the building (see Supreme Court Decisions 96Da4135, Jan. 24, 197; 209Da418498, Aug. 29, 197, 1998

However, according to the facts established by the court below, the plaintiff did not properly confirm the boundary by means of conducting a boundary survey, etc., while constructing the building of this case at around 1976, and the size of the land used as the building of this case and the marina and passage attached thereto owned by the plaintiff is 449 square meters, and 420 square meters is located in the land owned by the defendant. Thus, the part of the land owned by the plaintiff is limited to 29 square meters, and the land of this case is limited to 29 square meters, and the land survey result of the building of this case (the plaintiff was present in the land surveying site) conducted on December 29, 1989 at the Korea Cadastral Corporation branch office, Kimpo-Gun branch office, Kimpo-gun branch office, and Kimpo-gun branch office, which was located in the building register, and it is reasonable to view that the building of this case was invaded with the land of this case including the land of this case, and considering that the building site of this case was located in the building of this case as part of the land owned by the plaintiff.

Nevertheless, without examining whether there are other special circumstances, the court below determined that the presumption of self-ownership does not reverse the presumption of self-ownership, and that the prescription period for the plaintiff's possession on January 1, 1997 with respect to the part of 383 square meters in the part of the crime committed by the defendant was completed. Thus, the court below erred by misapprehending the legal principles on self-ownership, or by failing to sufficiently examine the plaintiff's intent, which affected the conclusion of the judgment. The ground of appeal on this point is with merit.

3. 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 Kim Young-ran (Presiding Justice)