[1] The meaning of and criteria for determining the possession of an article

[2] Criteria for determining transfer and continuation of possession of forest land

[1] The possession of an object refers to the objective relationship that appears to be in a person's factual control under the social concept, and to have a de facto control, it does not necessarily mean that the object is physically and practically controlled, but should be determined in accordance with the social concept by taking into account the time, spatial relationship with the object, the possibility of excluding another person's control, etc.

[2] It is reasonable to view that the transfer of possession or the continuation of possession does not necessarily require the physical and realistic control, and that there was a transfer of management or use, and that in case of transfer of ownership of forest land, it is ordinary form in transaction to acquire control over ownership of forest land, and that the continuation of possession is presumed to have been presumed to have been presumed to have existed, and that there was delivery and possession of the whole forest land, unless there is any special circumstance, if the ownership of forest is transferred after purchase of forest land and transfer registration for the whole forest was completed.

[1] Articles 192 and 196 of the Civil Act / [2] Articles 192 and 196 of the Civil Act

[1] [2] Supreme Court Decision 91Da38266 delivered on June 23, 1992 (Gong1992, 2239) / [1] Supreme Court Decision 92Da37710 delivered on November 10, 1992 (Gong1993Sang, 92) Supreme Court Decision 94Da23821 delivered on July 14, 1995 (Gong195Ha, 277)

Plaintiff

Defendant 1 and one other (Attorneys Yoon Young-chul et al., Counsel for the defendant-appellant)

Changwon District Court Decision 95Na2030 delivered on March 29, 1996

All appeals are dismissed. The costs of appeal are assessed against the Defendants.

(1) We examine Defendant 1’s grounds of appeal.

(A) As to ground of appeal No. 1

In full view of the Plaintiff’s evidence, the lower court: (a) sold only the remainder 3,576 square meters of the entire forest of this case owned by Nonparty 1 to Nonparty 2; (b) on December 31, 1970, Nonparty 2 purchased the remaining part of the forest of this case excluding the 3,576 square meters (hereinafter “the forest of this case”); and (c) on around 1951, Nonparty 3, who purchased the remaining part of the forest of this case, excluding the forest of this case’s 1970 square meters (al. 1 omitted); and (d) on October 10 of this year, it was hard to accept the lower court’s fact-finding that Nonparty 2 sold the remaining part of the forest of this case, excluding the forest of this case’s 1970 square meters under the name of Nonparty 1, his parents, and (e) on December 31, 1970, it did not recognize the ownership transfer registration of the forest of this case’s case’s 97 forest of this case’s forest of this case’s.

(B) As to ground of appeal 2

The registration under the Act on Special Measures is completed in accordance with the lawful procedure under the above Act, and is presumed to be in accordance with the substantive relationship, and thus, there is a burden of proof for the presumption number. However, if the other party's substantive contents in a guarantee certificate or a written confirmation, which forms the basis for registration, are false, or there is proof to suspect that the substantive contents are not true, the presumption of registration shall be deemed to have been reversed, and the degree of proof of the falsity of a guarantee certificate, etc. shall not be sufficient to the extent that the judge's conviction is true (see Supreme Court Decision 93Da3034 delivered on December 22, 1994).

In light of the records, the above non-party 2 purchased only the remainder except for the part of the mountain land in this case from the above non-party 1, but completed the registration of transfer of ownership based on the false letter of guarantee that he purchased the entire forest land in this case, and the registration of transfer of ownership in the name of the defendants, which was made based on this registration, is acceptable. The court below's reasoning that the registration of the above non-party 2 with respect to the forest land in this case and the registration of transfer of ownership in the name of the defendants is null and void is acceptable

(C) As to ground of appeal No. 3

In a case where the registration of transfer of ownership has been made from the seller on the register for the whole part of the land which was not divided into the land in the course of sale of one parcel of land, the title trust relation was established between two persons unless there are special circumstances. The view that the third party who acquired the entire land including the portion which was not first sold from the buyer who was the title trustee and received the registration of transfer has acquired the ownership effective as to the portion which was not first sold. However, as pointed out in the lawsuit, it seems that there was an implied agreement between the parties on the registration of transfer of the entire parcel of land in such a case, barring any special circumstance. In this case, the title trust relation between the parties is established. Since the above non-party 2 and the non-party 2 had received the registration of transfer under the aforesaid special measures after the death of the above non-party 1 and the non-party 2, it cannot be viewed that there was no agreement on the registration of transfer of ownership of the entire forest in this case, and therefore, the judgment of the court below did not err in the misapprehension of the judgment as to the contrary.

(D) As to ground of appeal No. 4

The court below rejected the claim by prescription on the ground that Defendant 1 purchased the entire forest land of this case including the mountain land of this case from Defendant 2, and opened forest roads in the area of dispute after obtaining a certificate of completion of forest damage for building forest roads on November 21, 198 with respect to the entire forest land of this case from the Chang-Gun on November 21, 198, but it cannot be deemed that Defendant 1 occupied the entire forest land of this case on the sole basis of such fact.

The possession of a thing refers to the objective relationship that is considered to be a factual control of a person under the social concept, and is in de facto control, it is not necessarily the mere physical and practical control of the thing. It shall be judged in conformity with the social concept in view of the time, spatial relationship with the thing, the principal right relationship, the possibility of excluding another person's control, etc. In particular, it shall not be deemed that the transfer of possession or the continuation of possession of forest land does not necessarily require the physical and practical control, but it shall be deemed that the delivery was made when the management or use is transferred, and if the ownership of forest is transferred, it shall be deemed that the transfer of control is the ordinary form in the transaction, and if the possession of forest is presumed to have been transferred, it shall be deemed that the possession of the entire forest has been transferred, and if the purchase of the forest and land and the transfer of the entire forest have been delivered, it shall not be deemed that there was a delivery and possession of the forest (see Supreme Court Decision 91Da3826, Jun. 23, 1992).

However, according to the records, if the above non-party 2 purchased only the remainder of the forest land in this case except the mountain land in this case from the above non-party 2 (the court below found that the non-party 5 purchased the forest land in this case from the non-party 2, but according to the records, the non-party 5's agent or the non-party 5 can be known to be a trustee), and selling the entire forest land in this case including the forest land in this case which he did not purchase to the defendant 1, belongs to the rule of experience, unless the plaintiff 2's deception does not open, but there is no assertion or proof between the parties, and the defendant 1 did not submit a sales contract with the defendant 2, and if the entire forest land in this case was sold between the defendants as the fact-finding of the court below, it would be held that the defendant 2 sold the forest land in this case which he did not purchase, and thus, it would not affect the conclusion of the court below's conclusion that the defendant 1 and the non-party 1 did not occupy the forest land in this case.

(2) Defendant 2 did not file an appellate brief within a lawful period, and the appellate brief does not indicate the grounds for appeal in the appellate brief.

(3) Therefore, all appeals by the Defendants are dismissed, and the costs of appeal are assessed against the Defendants who have lost. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Don-hee (Presiding Justice)