A. The presumption of intention to own as an requirement for possession with respect to the prescriptive acquisition

B. The case holding that the plaintiff's act of preserving jointly-owned property is an abuse of rights in light of the fact that the plaintiff's claim for removal of one square meters portion of the building owned by the defendant, where the boundary of the building owned by the defendant was infringed upon, and the plaintiff has a duty to transfer ownership registration based on the completion of the prescriptive acquisition against the defendant as to one half of the part of the site in boundary, and there is no particular benefit to the plaintiff when the removal was made, while there

A. In the case of acquisition by prescription, the existence or absence of intention, which is the requirement for possession with intention of possession, must be determined objectively by the nature of the source of possessory right which is the cause of acquisition by possession, but if the title of possession is not clear, the possessor shall be presumed to have been occupied with intention of possession in accordance with Article 197(1) of the Civil

B. The case holding that the plaintiff's claim for removal of one square meter portion of the building owned by the defendant, which was jointly owned by the defendant, is a preservation act of the building owned by the defendant, and the plaintiff has a duty to inform the defendant of the registration of ownership transfer based on the completion of the prescriptive acquisition with respect to one half of the share in the site abutting upon the boundary of the defendant, and the removal constitutes an abuse of rights in light of the fact that there is no particular benefit to the plaintiff when the removal is carried out, while there is considerable damage to the defendant.

A. Articles 197(1) and 245(b) of the Civil Act; Article 2 of the Civil Act

A. Supreme Court en banc Decision 82Da708, 709, 82Meu1792, and 1793 (Gong1983, 1248) Decided November 13, 1990 (Gong1991, 83), Supreme Court Decision 90Da8312 Decided December 26, 1990 (Gong1991, 614), Supreme Court Decision 80Da484 Decided May 27, 1980 (Gong1980, 12878) (Gong1983, 1983, 1657), and Supreme Court Decision 83Da33589, Oct. 11, 1983 (Gong1983, 1957) (Gong1983, 1989, 1985).

Plaintiff (Counterclaim Defendant), Attorney Kim Jong-ju, Counsel for the plaintiff-Counterclaim defendant)

Defendant (Counterclaim Plaintiff)

Jeju District Court Decision 89Na1131, 1148 decided January 18, 1991

The appeal is dismissed.

The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate brief).

1. As to the acquisition by prescription:

In the case of the acquisition by prescription, the intention of possession, which is the requirement for the possession with intention of possession, must be objectively determined by the nature of the source of possessory right which is the cause of the acquisition by possession: Provided, That if the title of possession is not clear, the possessor is presumed to possess as his own intention pursuant to Article 197(1) of the Civil Act (see, e.g., Supreme Court en banc Decision 82Da708, Jul. 12, 1983; 82Meu1792, 1793, Jul. 12, 1983).

According to the reasoning of the judgment below, the court below held that the acquisition by prescription of June 15, 1981, which was 20 years after the date of possession of the land in this case, was completed as of June 15, 1981, since the defendant's defense of the acquisition by prescription and the validity of the counterclaim claim based thereon, the non-party 1 purchased 1/2 of the land in this case from the non-party 2, based on the macroficial evidence, together with 1/2 of the 12 square meters of the land in this case, and the defendant succeeded to the possession of the land in this case, and the possession was presumed to have been openly held as his intention. In light of the records, the court below's above fact-finding and decision are just and there is no violation of the rules of evidence or misapprehension of the legal principles as to the presumption of possession by autonomy, as in the theory

The precedents pointed out by the theory of lawsuit are related to the cases falling under the possession of another owner in the nature of the title or before the above en banc decision, and do not seem to be appropriate in this case. The arguments are groundless.

2. As to abuse of rights:

According to the reasoning of the judgment below, with respect to the plaintiff's claim seeking removal of one square meter portion on the ground of the land section of the building site in this case owned by the defendant as an act of preservation of jointly owned property, the court below held that the plaintiff's claim constitutes an abuse of rights in light of the fact-finding and decision of the court below, and there is no error of law by misapprehending the legal principles as to abuse of rights as to abuse of rights, such as the plaintiff's theory and theory of lawsuit, as it is justified, and there is no ground for appeal.

3. Ultimately, the Plaintiff’s appeal is without merit, 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 on the bench.

Justices Kim Yong-ju (Presiding Justice)