In a case where a person who was assessed in the Forest Survey Division pursuant to the former Forest Survey Ordinance occupies the adjacent land exceeding the area of the land under consideration, and the area of the excess portion exceeds the extent of mistake that would normally have been in excess, whether the possession of the adjacent land is the possession by the owner (affirmative in principle)

Article 245(1) of the Civil Act

Plaintiff

Republic of Korea (Law Firm 21st century General Law Office, Attorneys Seo-il et al., Counsel for the plaintiff-appellant)

Gwangju District Court Decision 2013Na52086 Decided March 19, 2014

The judgment of the court below is reversed, and the case is remanded to the Gwangju District Court Panel Division.

The grounds of appeal are examined.

1. As to the assertion of mistake of fact as to possession

This part of the ground of appeal is erroneous as to the admission of evidence or fact-finding which belongs to the full power of the fact-finding court, and it cannot be a legitimate ground of appeal. Furthermore, even if examining the record in light of the record, it does not err by exceeding the bounds of the principle of free evaluation of

2. As to the assertion of misapprehension of legal principles as to administrative property

The lower court rejected the Defendant’s assertion that the instant land constitutes administrative property as of June 21, 1993 and is not subject to the prescriptive acquisition until this time, solely on the fact that the Defendant was registered as the owner on June 21, 1993 as to the instant land. Rather, according to the result of fact-finding, it is only recognized that there was no permission for reclamation of public waters on the instant land. Therefore, the lower court rejected the Defendant’s assertion that the instant land constitutes administrative property as of June

In light of the relevant legal principles and records, the above judgment of the court below is just, and there is no error of law by misapprehending the legal principles as to administrative property or by exceeding the bounds of the principle of free evaluation of evidence

Meanwhile, the assertion that the instant land is a forest as a natural object and not subject to acquisition by prescription until the management agency is designated as the defendant is newly asserted in the final appeal as a fact-finding court that it did not claim in the fact-finding court until April 21, 1998, and is not a legitimate ground of appeal, and even if examining the record in light of the records, there is no evidence finding that the instant land was a public property for public purposes, and thus, it cannot be accepted.

3. As to the assertion of misapprehension of the legal principle as to autonomous possession

According to the reasoning of the judgment below, the court below acknowledged the following facts: (a) Nonparty 1, who was the Plaintiff’s father Nonparty 1 registered the instant land as the owner on December 21, 1993 and completed registration of preservation of ownership on April 28, 1998; (b) had been cultivated on the instant land and (c) land from around that time; and (d) Nonparty 1 died on around 1943, Nonparty 2, his father, continued to grow on the instant land, etc.; (b) Nonparty 2 cultivated the instant land, which was specified as inherited property after the Plaintiff died in around 1983, and was in possession of the Plaintiff’s property to his mother and his care; and (c) the Defendant registered the instant land as the owner on June 21, 1993, and completed registration of preservation of ownership on April 28, 1998; and (d) determined that there was no reasonable ground to deem the Plaintiff’s possession of the instant land with his intention to possess it voluntarily after the lapse of 20 years.

However, we cannot accept the judgment of the court below for the following reasons.

In the procedure to be registered in the Forest Survey Division under the former Forest Land Survey Ordinance, the Forest Survey Division shall, upon receiving a report from the owner, complete the survey and survey in the presence of the owner, and shall not only be prepared in accordance with the results of the assessment of the owner and the limit of the owner through the submission of the cadastral map and the consultation on the matters of the circumstances, and the procedure for the owner’s objection is also prepared after a public announcement for a certain period of time. In a case where the land in excess of the assessment land was occupied for an adjacent land, and the area occupied in excess of the area of the affected land exceeds that of ordinary mistake, it is reasonable to deem that the said person was aware of such fact at the time, barring any special circumstances leading to such misunderstanding. Thus, the possession of adjacent

According to the records, the forest land of this case, which was assessed against the deceased non-party 1 at around 1918, is about 15,669 square meters if the area of the forest land in this case is converted into the area of one five square meters in the public record book, and is about 15,69 square meters. The land area of this case, which the plaintiff occupied and cultivated by succeeding possession from the deceased non-party 1 and the deceased non-party 2 in succession, is equal to the area of 4,871 square meters. Thus, barring any special circumstance, the area of the land occupied by the plaintiff exceeds the area on the public record of the land under original circumstances. Thus, barring any special circumstance, the deceased and the plaintiff's possession of the land of this case shall be deemed as falling under the possession of another owner by its nature

Nevertheless, without examining whether there are such special circumstances as above, the court below determined that the presumption of possession of the plaintiff's possession was an independent possession without any circumstance to reverse the presumption of possession of the plaintiff's possession. The court below erred in the misapprehension of legal principles as to the independent possession, which affected the conclusion of the judgment

4. Conclusion

The lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Yong-deok (Presiding Justice)