[1] The case where the presumption of possession with independence is reversed

[2] The case holding that there is a lot of room to view that external and objective circumstances have been proven to reverse the presumption of possession with independence

[1] According to Article 197(1) of the Civil Act, the possessor of an object is presumed to possess the object with the intention of possession. However, whether the possessor is the owner with the intention of possession or with the intention of possession without the intention of possession is not determined by the internal deliberation of the possessor, but by the nature of the title that caused the acquisition of possession or all circumstances related to the possession. Thus, it is proved that the possessor acquired the possession on the basis of the title that the possessor is deemed to have no intention of ownership due to its nature, or that the possessor is not deemed to possess the object with the intention of exercising exclusive control like his own property by excluding another's ownership. In other words, if it is proved that the possessor did not act with the intention of possession or would have taken place as a matter of course if the possessor did not act with the intention of possession, the presumption is broken, and thus, it is not clear that the possessor did not have the intention of possession without the intention of the other person without the intention of possession without the intention of possession.

[2] The case holding that, in addition to the case where the possessor's possession of the real estate is not recognized, it is hard to view that the external and objective circumstance that can reverse the presumption of possession of the real estate is proven, since the possessor explicitly expressed his intention to receive it by the means of resolving the registration relations of the real estate, and the possessor knew that his name on the registry is a Japanese company at the time of the commencement of possession of the real estate.

[1] Article 197 (1) of the Civil Code / [2] Article 197 (1) of the Civil Code

[1] Supreme Court en banc Decision 95Da28625 delivered on April 11, 1997 (Gong1997Sang, 3547), Supreme Court Decision 96Da29410 delivered on November 8, 1996 (Gong1996Ha, 3547), Supreme Court Decision 96Da28625 delivered on August 21, 1997 (Gong1997Ha, 2501), Supreme Court Decision 97Da32901 delivered on October 24, 1997 (Gong1997Ha, 3614) / [2] Supreme Court Decision 96Da26299 delivered on September 12, 197 (Gong197Ha, 307Ha, 197Ha, 307Ha, 197).

Plaintiff (Attorney Kim Ho-nam, Counsel for the plaintiff-appellant)

Korea

Busan District Court Decision 97Na2563 delivered on July 19, 1997

The judgment below is reversed. The case is remanded to Busan District Court Panel Division.

The grounds of appeal are examined.

1. According to the reasoning of the judgment below, the court below reversed the defendant's claim that the real estate in the separate sheet No. 1 attached to the judgment of the court below was owned on August 14, 1973 by Non-Party Red Profit Co., Ltd., which was originally owned on August 33, 1945, because the real estate in the separate sheet No. 1 attached to the separate sheet No. 799, and the real estate No. 2 attached to the separate list No. 728, which was owned on September 14, 197, was owned by Non-Party Hong Profit Co., Ltd., which was owned on August 14, 1973, and that the real estate acquired on September 11, 1948, which was owned by the government of the Republic of Korea and the government of the United States, was owned on the non-party No. 94, which was owned on the non-party No. 1, the presumption that the above real estate was owned on the non-party No. 21, for 3 years since August 14, 197.

2. Regarding ground of appeal No. 2

Article 197(1) of the Civil Act provides that an occupant of an article shall be presumed to have occupied the article with the intention of possession. However, whether the possessor is an occupant with intention of possession or with no intention of possession is determined by the internal deliberation of the possessor, rather than by the internal deliberation of the possessor, and is determined externally and objectively by the nature of the title that caused the acquisition of possession or by all circumstances related to the possession. As such, it is objective circumstance that the possessor cannot be deemed that the possessor acquired the ownership based on the title that appears to have no intention of ownership due to its nature, or that the possessor is not deemed to have occupied the article with the intention of exercising exclusive control like his own property by excluding another’s ownership, i.e., where the possessor did not express his/her intention of possession or would have taken action as a matter of course if he/she did not act with the owner, and thus, the presumption is broken if it is proved that the possessor did not have an intention of possession with the intention of possession of another person without the intention of possession (see, e.g., Supreme Court en banc Decision 2005Da97297.

However, according to the facts acknowledged by the court below, when the plaintiff conducted a fact-finding survey on state property conducted around April 1985 and November 191, 191, the plaintiff explicitly expressed to the public official in charge of the public official claiming that the real estate of this case is state property in the way to resolve the registration relationship of the above real estate. Even according to the plaintiff's assertion itself, it was known that the name of the owner on the registry of each of the above real estate of this case is Hesansan, a Japanese company, at the time when the plaintiff begins occupying each of the above real estate of this case (record Nos. 14, 119). Further, if the purchase of each of the real estate of this case is not recognized by the plaintiff, it is hard to view that the external and objective circumstance to reverse the presumption of autonomous possession was proved. Meanwhile, the defendant examined whether the possession of each of the real estate of this case was occupied without permission after December 11, 196 submitted by the court of first instance, and it can be confirmed that it constitutes the plaintiff's unauthorized possession of each of this case (the court below).

Nevertheless, the court below’s determination that the presumption of the Plaintiff’s possession of each real estate of this case was not reversed solely based on its stated reasoning, and it cannot be said that it committed an unlawful act that affected the conclusion of the judgment by misapprehending the legal principles as to the presumption of possession with autonomy, by failing to exhaust all necessary deliberations. The part of the grounds of appeal assigning this error is with merit.

3. Therefore, without examining the remaining grounds of appeal, the judgment of the court below shall be reversed, and the case shall be remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices.

Justices Park Jong-chul (Presiding Justice)