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1. The plaintiff's claim is dismissed.
2. The costs of lawsuit shall be borne by the Plaintiff.
Reasons
1. Basic facts
A. On October 4, 1976, the Plaintiff purchased a building of 116m2, Nam-gu, Incheon (hereinafter “instant building site”) and its unregistered building on its ground, and completed the registration of ownership transfer in its name on the instant building site on October 11, 197.
B. From the time of purchase of the instant site to the date of closing argument, the Plaintiff occupied and used the portion of 33 square meters in the ship connecting each point of 12, 13, 14, 16, 17, 24, 23, 22, and 12 attached Form No. 12, 13, 14, 16, 17, 24, 23, 22, and 12, located in the building adjacent to the instant site, Nam-gu, Incheon, Nam-gu, Incheon. (hereinafter “the instant portion
C. The occupied part of this case is located inside the gate and fence of the building owned by the Plaintiff, and is abutting on the fenced part across the boundary of the wall.
[Ground of recognition] The facts without dispute, Gap evidence Nos. 1, 2, 4, 5, 9 (each number includes numbers; hereinafter the same shall apply), Gap evidence Nos. 7 and 10, and the purport of the whole pleadings.
2. Determination as to the cause of a claim is whether the possessor’s possession is the possession with intention of possession or with no intention of possession, not determined by the possessor’s internal deliberation, but by the external and objective decision of the possession according to the nature of the source of title or all circumstances related to the possession (see, e.g., Supreme Court Decision 95Da28625, Aug. 21, 1997). Thus, even if the buyer purchased and acquired the site together with the above ground building and acquired the land and acquired it, as long as he believed that part of the adjoining land belongs to the site that he purchased and acquired it, the possession of the above adjoining land is also based on the intention of ownership, as long as he actually occupies a part of the adjoining land.
Supreme Court Decision 97Da45730 Delivered on February 13, 1998