[1] Whether the presumption of possession with autonomy applies to a case where the State or a local government occupies real estate (affirmative), and whether the presumption of possession with autonomy is reversed solely on the ground that the possessor’s title to possession with autonomy is not recognized (negative)

[2] Where the State occupies land for twenty (20) years and the prescriptive acquisition is completed, whether the landowner can exercise the right to claim compensation for losses under the Act on Special Measures for Compensation for Land Incorporated into Rivers (affirmative)

[1] If the nature of the source of possession right of real estate is not clear, the possessor shall be presumed to have occupied the ownership in good faith, peace, and public performance with his/her own intent pursuant to Article 197(1) of the Civil Act. Such presumption applies likewise to cases where the State or a local government (hereinafter collectively referred to as the “State, etc.”) that is the managing body of the cadastral record, etc. takes possession of the ownership. In addition, even in cases where the possessor asserts the title of possession, such as purchase and sale or donation, but not recognized as such, unless the possessor bears the burden of proof of the source of possession right, the presumption of possession is reversed or the possessor is not deemed to have taken possession in view of the nature of the source of possession right. Therefore, even if the State, etc. fails to submit documents regarding the procedure for acquiring land claiming the completion of acquisition by prescription, the State, etc., upon commencement of possession in the cadastral record, tried to exercise the ownership of the divided land, and the State, etc. cannot be held as an owner without permission.

[2] Where the acquisition by prescription is completed by occupying the land for twenty (20) years, it is difficult to view that the owner of the land is in a position to exercise ownership against the State since he/she bears the obligation to implement the procedure for the registration of ownership transfer on the ground of such possession. Meanwhile, in light of the legislative purport of the Act on Special Measures for Compensation for Land Incorporated into Rivers, which was enacted for the purpose of compensating the owner of the land acquired into a river who was not compensated due to the expiration of the extinctive prescription period for the claim for compensation, etc., the circumstance where the period of prescription for the acquisition by possession has expired may hinder the landowner from exercising the real right against the State. However, it does not affect the landowner’s claim for compensation for pecuniary loss based on the ownership based on the premise that

[1] Articles 197(1) and 245(1) of the Civil Act / [2] Articles 1 and 2 of the Act on Special Measures for the Compensation, etc. for Land Incorporated into Rivers

[1] Supreme Court Decision 9Da72743 Decided February 26, 2002 (Gong2002Sang, 777), Supreme Court Decision 2006Da28065 Decided February 8, 2007, Supreme Court Decision 2012Da30168 Decided March 27, 2014, Supreme Court Decision 2014Da206952 Decided July 9, 2015

See Attached List of Plaintiffs (Seoul General Law Firm, Attorney Kim Jong-soo, Counsel for the plaintiff-appellant)

Gyeonggi-do (Attorney above-at-law)

Seoul High Court Decision 2013Nu13916 decided December 12, 2013

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. The judgment of the court below

According to the reasoning of the judgment below, the court below acknowledged the following facts, comprehensively based on the adopted evidence, that each of the lands of this case was classified as a site for the Osan bank and the Cheongnam bank constructed by the Japanese Government Department around 1941 and used as a site for the embankment site or the exclusion site until now, and that Osan river including Osan bank and the Cheongsan School was managed by the defendant, a local government.

Based on such factual premise, the lower court determined that the presumption of autonomous possession of each land of this case cannot be reversed solely on the ground that, even if the Defendant did not submit the documents on the acquisition procedure of each land of this case, the presumption of autonomous possession of each land of this case was not reversed solely on the following grounds: (i) the land of this case was purchased by the State in 1939 and 1942 in addition to the background and purpose of the possession of each land of this case, and (ii) there was a provision that the land adjacent to each of the land of this case was purchased by the State in 1939 and 1942 in addition to the background and purpose of the possession of each of the land of this case, and that there was a provision that shall compensate the landowner who suffered damage due to river-related river construction works at the time, the possibility of lawful acquisition of ownership of each of the land of this case cannot be ruled out.

Furthermore, the lower court rejected the Plaintiffs’ claim for compensation on the ground that, upon completion of the prescriptive acquisition for real estate, the possessor may file a claim against the nominal owner for the implementation of the procedure for the registration of ownership transfer on the ground of the completion of the prescriptive acquisition, and the nominal owner is obligated to comply with this, the nominal owner cannot exercise his/her right on the part of the possessor for whom the prescriptive acquisition has been completed, even though the Plaintiffs’ claim for compensation was made against the prior owner by enforcing the former River Act (amended by Act No. 892 of Dec. 20, 1961), the Plaintiffs’ prior owner, who was in a position to implement the procedure for the registration of ownership transfer on the ground of the completion of the prescriptive acquisition for the State, could not exercise his/her right to the said claim against the Defendant who occupied and managed each

2. Judgment of the Supreme Court

A. If the nature of the source of possessory right of real estate is not clear, the possessor is presumed to have occupied the property in good faith, peace, and public performance with his/her own intent under Article 197(1) of the Civil Act. This presumption applies likewise to cases where the State or a local government (hereinafter collectively referred to as “the State, etc.”) that is the managing body of the cadastral record, etc. takes possession of the property. In addition, even if the possessor asserts the title of possession, such as purchase and sale or donation, but not recognized as such, unless the possessor bears the burden of proving the source of possession, the presumption of possession is reversed or the possessor is not deemed to have taken possession by nature of the source of possessory right (see, e.g., Supreme Court Decisions 9Da72743, Feb. 26, 2002; 2006Da28065, Feb. 8, 2007).

Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and the record, the lower court’s determination that the Defendant’s presumption of possession does not reverse is justifiable. In so determining, contrary to what is alleged in the grounds of appeal, the lower court did not err by misapprehending the legal doctrine on the presumption of possession by prescription

B. However, the lower court’s determination that the Plaintiffs cannot exercise the right to claim compensation for loss under the Act on Special Measures for the Compensation, etc. for Land Incorporated into Rivers (amended by Act No. 9543, Mar. 25, 2009; hereinafter “Special Measures Act”) on the ground that the acquisition by the State was completed prior to the transfer of the instant land to the river was completed, is difficult to accept for the following reasons.

(1) In the event that the acquisition by prescription is completed by the State occupying the land for twenty (20) years, it is difficult to deem that the State is in the position to exercise ownership against the State since the State bears the obligation to implement the procedure for the registration of ownership transfer on the ground of such possession. However, in light of the legislative purport of the Act on Special Measures for the Prevention of Loss Caused by the Lapse of the extinctive prescription of the claim for compensation, etc., the circumstance where the period for the acquisition by prescription has expired may hinder the State from exercising the claim for real right based on ownership against the State. However, the fact that the period for the acquisition by prescription has expired may not affect the State’s exercise of the claim for real right based

(2) In light of the aforementioned legal principles, in the instant case where it is evident that the Plaintiffs sought compensation for losses pursuant to Article 2 of the Act on Special Measures, the Plaintiffs’ claim for compensation for losses arising from the loss of ownership of each of the instant land was made to the Defendant who occupies and manages each of the instant land upon delegation by the State, since the statute of limitations on the acquisition of possession of each of the instant land was completed in around 1961, but each of the instant land was incorporated into the river area and owned by the State. Accordingly, the Plaintiffs’ claim for compensation for losses due to the loss of ownership of each of the instant land occurred around that time, and the Plaintiffs who inherited such rights from

Nevertheless, the lower court erred by misapprehending the legal doctrine on the status of the possessor for whom the acquisition by prescription has been completed and the compensation for damages under the Act on Special Measures, thereby adversely affecting the conclusion of the judgment.

3. Conclusion

Therefore, the judgment of the court below is reversed, and the case is 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 on the bench.

[Attachment] List of Plaintiffs: Omitted

Justices Park Poe-young (Presiding Justice)