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(영문) 대법원 2017.12.22 2017다360
소유권이전등기
Text

All appeals are dismissed.

The costs of appeal by the Plaintiff are assessed against the Defendant (Appointed Party).

Reasons

The grounds of appeal are examined.

1. The possessor of an article determining the Plaintiff’s grounds of appeal is presumed to have occupied as his/her own intent (Article 197(1) of the Civil Act). Therefore, in cases where the possessor asserts the prescriptive acquisition, he/she is not liable to prove his/her own intention, and the possessor bears the burden of proof to a person who denies the establishment of the prescriptive acquisition by asserting that the possessor is an

It is not determined according to the will of the possessor with the intention of the possessor, but it should be determined with the intention of the possessor, in accordance with the nature of the title which is the cause of the acquisition of possession and all circumstances related to the possession.

The presumption is broken only when it is proved that the possessor acquired possession on the basis of the title which appears to have no intention to own in its nature, or where it is proved that the possessor did not normally take the position of the real owner or does not act as a matter of course when the possessor did not appear to have taken the position of the real owner if he/she did not act as a matter of course in the case of the real owner, or when it is proved that the possessor did not have an intention to reject the ownership of another person and to hold it in the case of an external objective view, such as the possessor’s exclusion of ownership of another person.

(See Supreme Court en banc Decision 95Da28625 delivered on August 21, 1997, etc.). However, the presumption of possession with autonomy cannot be deemed to be broken solely on the ground that the possessor, by himself/herself, asserted the title of possession, such as sale and gift, and that this is not recognized.

(see, e.g., Supreme Court Decision 99Da72743, Feb. 26, 2002). The lower court acknowledged, based on the adopted evidence, that the land was occupied by Defendant I as stated in the attached Table 56 of the lower judgment through BZ, the intention of Defendant I was omitted.

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