Whether it is presumed as an autonomous possession even in the case of purchasing and possessing a building with the knowledge that it was illegally constructed on the land owned by another person.

Even if the purchased building has been aware that it was constructed without permission on the site owned by another person, and it has been extended after purchasing it, and occupied and used the site part, it constitutes possession with intention by the nature of the source of title.

Articles 197(1) and 245(1) of the Civil Act

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Han-sung, Attorneys Park Jae-young and 1 other, Counsel for plaintiff-appellant-appellant-appellant-appellant-appellant-appellant-Appellee)

Plaintiff 1 et al., Counsel for the defendant-appellant-appellee

Defendant 1 and 13 Defendants, Counsel for the defendant-appellant

Seoul High Court Decision 91Na50428, 50435 decided March 10, 1993

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

We examine the grounds of appeal.

1. Summary of the judgment below

According to the reasoning of the judgment below, since the non-party 1 was newly constructed on the site of this case by the non-party 2 and the non-party 2 purchased from the above non-party 1 around 1967, and the building of this case No. 2 was newly constructed on May 7, 1964 by the Seoul Special Metropolitan City, and purchased and owned it around 1965, and the non-party 2 and the non-party 4 occupied the above building site portion for 20 years or more, it is difficult to believe that the above non-party 2 and the non-party 4 owned the above building No. 1 and the non-party 2 without permission as to the non-party 1 and the non-party 4's possession of the building site of this case and owned it on the non-party 1 and the non-party 4's non-party 6's non-party 1 and the non-party 2's non-party 2's non-party 1 and the above building's non-party 4's possession and use of the building site.

2. Regarding ground of appeal No. 1

According to the records and the above fact-finding by the court below, the court below acknowledged the fact that the above non-party 2 and the non-party 4 were in existence on the site of this case each of the above buildings of 10 square meters of 10 square meters in the Gangdong-gu Seoul Metropolitan Government ( Address 1 omitted) ground cement and 10 square meters of ground ground-based ground-based ground-based ground-based ground-based ground-based ground-based ground-based 10 square meters of building and 10 square meters of junium of 10 square meters of building for jun's house on the register purchased from the non-party 1 and the non-party 3, the former owner of the above non-party 2 and the non-party 4, and it is clear that the above building on each of the above registers purchased by the above non-party 2 and the non-party 4 cannot be identified on the building of this case because it is different from the building of this case and its structure and construction.

We cannot accept the remainder of the erroneous understanding of the lower court’s findings of fact, and criticize it.

3. Regarding ground of appeal No. 2

In the case of prescriptive acquisition, possession means the possession with the intention of de facto exercising the same control as the owner (see Supreme Court Decision 90Da18838, Jul. 9, 191). The existence of the intention of ownership should be determined by the nature of the source of the source of the right, but even if the nature of the source of right is not clear (see Supreme Court Decision 85Meu2230, Apr. 14, 1987; Supreme Court Decision 91Da42494, Dec. 8, 192; Supreme Court Decision 91Da42494, Dec. 8, 1992). As recognized by the court below, even if the above non-party 2 and the non-party 4 purchased it with the knowledge that it was constructed without permission on the site of this case on which the building purchased was owned by others, it constitutes an autonomous possession in view of the nature of the source of right (see Supreme Court Decision 92Da245364, Dec. 24, 1992).

The judgment of the court below is erroneous in the misapprehension of legal principles as to the possession with independence, which affected the conclusion of the judgment.

4. Therefore, 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 Park Jong-ho (Presiding Justice)