[1] In a case where an occupant occupied an immovable property owned by another person without permission knowing the existence of such legal act or any other legal requirements that may cause the acquisition of ownership at the time of commencement of possession without permission, whether the presumption of possession with intention to hold it independently is broken (affirmative)

[2] The case holding that the presumption of possession with autonomy was broken in the case where the local government did not take the procedure for acquiring the right and did not pay the compensation when the local government opened a road on the private land

[1] Where it is proved that the possessor occupied the real estate owned by another person without permission despite the absence of such legal requirements, such as a juristic act which may cause the acquisition of the ownership at the time of the commencement of possession, barring special circumstances, the possessor shall be deemed not to have an intention to reject the ownership of another person and to occupy it. Thus, the presumption of possession with the intention to own is broken.

[2] The case holding that the presumption of possession with autonomy has been broken in the case where the local government did not take the procedure for acquiring the title and did not pay the compensation in the construction of the road on the private land

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

[1] Supreme Court en banc Decision 95Da28625 delivered on August 21, 1997 (Gong1997Ha, 2501)

[Judgment of the court below]

School Foundation Shipbuilding University (Law Firm Shin, Attorneys Kim Byung-jin et al., Counsel for the defendant-appellant)

Seoul High Court Decision 95Na44278 delivered on May 14, 1996

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined.

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 to own. However, in cases where it is proved that the possessor occupied an immovable property owned by another person without permission despite 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, barring any special circumstances, the possessor shall be deemed not to have an intention to reject the ownership of another person and not to possess it. Therefore, the presumption of possession with the intention to own is broken (see Supreme Court en banc Decision 95Da28625 delivered on August 21, 1997).

According to the facts and records acknowledged by the court below, the plaintiff opened and packaged a road on the Dongjak-gu Seoul Metropolitan Government ( Address 1 omitted) 2,767 square meters and ( Address 2 omitted) 3,269 square meters (hereinafter referred to as "the land in this case") whose ownership was registered as the defendant around September 1967, and continuously occupied it for 20 years or longer at the time of offering it to the general public. As above, the plaintiff opened a road on the land in this case but did not follow the procedure for acquiring the title to the land, such as the land expropriation, but did not pay compensation to the land owner, and the plaintiff started the occupation as the road site in fact without paying compensation to the owner of the above land. The land cadastre is still registered as the owner of the above land in this case, and accordingly, the plaintiff did not have any special reason for acquiring the above land from the head of Dongjak-gu (Seoul Metropolitan Government as an autonomous Gu as of May 1, 1988). Accordingly, it can be viewed that there was no other special reason for the plaintiff's possession of the above land from the defendant's possession.

Therefore, the judgment of the court below which rejected the plaintiff's assertion of the prescription of possession of the above land on the ground that the presumption of possession of the land of this case is reversed and that the possession is recognized as the possession of the owner of the land of this case, is just and there is no violation of law such as the presumption of possession of the land of this case and the reversal thereof and the misapprehension thereof,

Therefore, the appeal is dismissed and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Yong-hun (Presiding Justice)