[1] The nature of possession of the property for which disposal is prohibited by the military law and the Act on the Disposal of Property Belonging to Jurisdiction (=the possession of the other owner)

[2] In a case where a private person purchases and possesses property without the authority to dispose of it with the knowledge that it is a property devolving upon the State, whether the presumption of possession with the authority to dispose of it is reversed (affirmative)

[1] The purport of Articles 21 and 33 of the Act on the Disposal of Property Belonging to the State Property, which was enforced on December 19, 1949, is to prohibit the disposal of property owned by Japan under the current status of August 9, 1945 based on the method of public notice as to the change in real rights, and to transfer the ownership to the United States Armed Forces. Since the above Act and the Act on the Disposal of Property Belonging to the State, which was enforced on December 19, 1949, ordered the possessor of the property belonging to the State and prohibit the disposal or transfer of the property belonging to the State without the permission of the authority, the possession of the property devolving to the State constitutes the possession of the property due to the nature of the title.

[2] According to Article 2 subparagraph 1 of the former Act on Special Measures for the Disposal of Property Belonging to the State (Act No. 1346 of May 29, 1963) and Article 5 of the Addenda, since the property devolving upon the State whose sales contract was not concluded by the end of December 1, 1964 should be state-owned free of charge. Thus, the property devolving upon the State shall be state-owned property from January 1, 1965 and thereafter possess it at the will of ownership. However, it is possible to possess the property not sold until that day. However, from that time of possession to another state-owned possession, it is not naturally converted from that time of possession to autonomous possession. In this case, the existence of ownership shall be determined externally and objectively by all circumstances related to the nature of the title giving rise to the acquisition of possession at the time of the commencement of possession or all other circumstances related to the possession. Thus, if a private person who asserts the prescriptive acquisition knowingly acquires it at the time of the commencement of possession, it shall be deemed to be reversed well without the presumption of ownership without permission.

[1] Articles 197 and 245 of the Civil Code, Article 2 of the Act on the Disposal of Property Belonging to Jurisdiction / [2] Articles 197 and 245 of the Civil Code, Article 2 subparagraph 1 of the former Act on Special Measures for the Disposal of Property Belonging to Jurisdiction (Act No. 1346 of May 29, 1963, invalidation), Article 5 of the Addenda

[1] Supreme Court en banc Decision 87Meu2176 delivered on December 26, 1989 (Gong1990, 342) / [2] Supreme Court Decision 95Da54204 delivered on November 29, 1996 (Gong1997, 162) Supreme Court Decision 98Da28442 delivered on April 11, 200 (Gong2000Sang, 1155) Supreme Court Decision 99Da36778 delivered on June 9, 200 (Gong200Ha, 1614), Supreme Court Decision 201Da42561 delivered on September 25, 2001

Plaintiff

Korea (Law Firm White General Law Office, Attorney Kim Young-young, Counsel for defendant-appellant)

Jeonju District Court Decision 2006Gadan13928 Decided December 8, 2006

April 27, 2007

1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the Plaintiff.

The judgment of the court of first instance is revoked. The defendant shall revoke the judgment of the court of first instance. On January 1, 1985, the plaintiff shall execute the procedure for the registration of ownership transfer on the ground of the completion of the prescriptive acquisition on January 1, 1985 with respect to the land of this case with respect to the land of this case (the plaintiff is a preliminary claim at the trial, and the plaintiff is a preliminary claim against the defendant for the implementation of the procedure for the registration of ownership transfer on January 1, 1985 with respect to the land of this case on the ground of the completion of the prescriptive acquisition on January 1, 1985, but it is merely a partial reduction of the claim and cannot be deemed an independent preliminary claim. Thus, the plaintiff's main

1. Basic facts

The land in this case is the property devolving upon which the registration of ownership transfer was completed in the name of the father-gu, Japan on April 26, 1921. The fact that the defendant completed the registration of ownership transfer under the name of the defendant on March 7, 2006, the Jeonju District Court No. 13240, Sept. 11, 1948, which was received on September 7, 1948, is not a dispute between the parties, or can be recognized by taking into account the purport of the whole pleadings in the statement No. 1 of the evidence No.

2. The plaintiff's assertion and judgment

A. The plaintiff's assertion

The plaintiff donated the land of this case, which is the property devolving upon the non-party 1, to the non-party 1, while returning to the Republic of Korea around the tidal wave. The non-party 2 of the plaintiff's father purchased the land from the non-party 1 on October 26, 1955, and occupied it in peace and performance at that time. Since the above land was reverted to the possession on January 1, 1965, which became the State property, the non-party 2 acquired the above land by prescription on January 1, 1985 after the lapse of 20 years from January 1, 1965, and the non-party 2 died on November 5, 2005, upon the division of inherited property among co-inheritors, the plaintiff inherited the right to claim the ownership transfer registration for the defendant's acquisition on the above land due to the completion of the acquisition by prescription on January 1, 1985.

(b) Markets:

(1) Article 1 subparagraph 2 of the Maritime Affairs and Fisheries Act (hereinafter “Military Affairs and Fisheries Act”) provides that the ownership of property owned by Japan after August 9, 1945 belongs to the United States Armed Forces on September 25, 194, and Article 2 of the Military Affairs and Fisheries Act provides that the ownership of property owned by Japan after August 9, 1945 belongs to the United States Armed Forces. Article 4 of the Military Affairs and Fisheries Act provides that the ownership of property owned by Japan shall be punished if it is violated. The purport of the provision is to prohibit the disposal of property owned by Japan under the current status of August 9, 1945, and to vest ownership in the United States Armed Forces (see Supreme Court en banc Decision 87Meu2176, Dec. 26, 1989; Supreme Court en banc Decision 2007Da1766, Sept. 19, 194).

Meanwhile, Article 2 subparag. 1 of the former Act on Special Measures for the Disposal of Property Belonging to the State (Act No. 1346) and Article 5 of the Addenda stipulate that property devolving upon the State shall be State-owned free of charge by the end of December 1964. Thus, property devolving upon the State-owned property which has not been sold until that day becomes State-owned property from January 1, 1965 and thereafter can be occupied with the intention of ownership. However, from that time of possession, it is not naturally converted from other State-owned property to independent possession. In this case, the existence of ownership shall be determined externally and objectively on the basis of the nature of the source of possession which was the cause of possession at the time of commencement of possession or all circumstances related to possession (see Supreme Court Decision 95Da54204 delivered on Nov. 29, 196. 200). Thus, the Supreme Court Decision 200Da168409 delivered on September 29, 200, 209.

(2) In this case, even if the plaintiff's assertion was based on the plaintiff's assertion, on October 26, 1955, the non-party 2 purchased and occupied the land of this case, which is the property devolving upon the non-party 1 after the enforcement of the military law. According to the statement of evidence No. 3 and the testimony of the non-party 3 of the first instance trial witness, it seems that the residents of the village where the land was located were widely aware that the land was owned by Japan before the enforcement of the military law, and it is common to confirm ownership in advance by the copy of the register or cadastral record before the conclusion of the sales contract (refer to Supreme Court Decisions 98Da62046 delivered on May 25, 199, 98Da28442 delivered on April 11, 200, etc.), since the plaintiff's denial non-party 2 can not be deemed to have acquired the real property from the non-party 1 with the knowledge that there was no right to dispose of the land in this case after the enforcement of the law.

In addition, in order to convert the possession into the possession with a new title, the intention of possession by the owner of the land owned by the owner of the land owned by the third party shall be indicated to the owner of the land, and the owner of the land owned by the third party without the intention of the owner of the land owned by the third party was registered in the building management ledger by constructing the building on the ground, or the payment of taxes, such as the property tax or aggregate land tax, etc. imposed on the land cannot be deemed to have re-owned with a new title, or to have expressed the intention of ownership by the third party. (See Supreme Court Decisions 94Da1449 delivered on April 29, 1994, Supreme Court Decisions 94Da50595, 50601 delivered on June 28, 1996, Supreme Court Decisions 2001Da16142 delivered on September 6, 202, etc.). Thus, the plaintiff's assertion that the non-party 1 had no intention to own the land as the owner's new owner's testimony.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and the judgment of the court of first instance is unfair by rejecting the lawsuit of this case, but it is not possible to revoke the judgment of the court of first instance disadvantageous to the plaintiff who is the appellant under the principle of prohibition of disadvantageous alteration in the case that only the plaintiff appealed. Thus, the plaintiff's appeal is dismissed.

Judges Yu-ro (Presiding Judge)