2015Da227567, Delivery, etc. of land

2015Da227574 (Counterclaim) Registration of transfer of ownership

person

A

B

Cheongju District Court Decision 2014Na11377 decided June 6, 2015 (main office), 2014 Ghana

11605 (Counterclaim) Judgment

June 23, 2016

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

The grounds of appeal are examined.

1. According to the reasoning of the judgment below, the court below acknowledged that the defendant (Counterclaim Plaintiff; hereinafter referred to as "the defendant") was aware that around 1978 the land of this case was invaded by the defendant's land, and constructed a house, a garage, and a warehouse (hereinafter referred to as "the plaintiff's house, etc.") located on the ground of the plaintiff's 86m (hereinafter referred to as "the land of this case") adjacent to the 16,29m wide (hereinafter referred to as "the ditch of this case") and the 16,29m wide (hereinafter referred to as "the plaintiff's land of this case") adjacent to the east-gun, Chungcheongnam-gun, Chungcheongnam-do (hereinafter referred to as "the defendant's land of this case"), and rejected the plaintiff's assertion that the defendant's independent possession presumption of the land of this case was broken or possession was converted into the possession of the land of this case as at the time when the defendant constructed the housing of this case, etc., and that the plaintiff's claim was sought after the defendant's land of this case.

The Defendant determined that the prescriptive acquisition of the instant land was completed on May 16, 2005 after the lapse of 20 years from May 16, 1985, which acquired the ownership of the Defendant’s land.

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

A. On the ground that the construction of a building did not accurately verify the boundary between the site and the adjoining land, even if the building caused a part of the adjoining land due to an error, it cannot be readily concluded that the occupancy of the adjoining land is not based on the intention of ownership. However, as a general rule, if a person who intends to construct a new building with a specific land as a site confirms the location and area of the site in advance by drawing, etc., and then goes further to the construction, it is reasonable to deem that the owner of the building was aware at the time of the construction that the building was invaded on the adjoining land if the area of the building exceeds the ordinarily permissible construction level, and exceeds the ordinarily permissible construction level, it is reasonable to deem that the owner of the building was aware of the fact that the building was invaded on the adjoining land (see, e.g., Supreme Court Decision 200Da4297, 42984, 4291, Dec. 8, 200).

1) From around 1978, the Defendant had been holding several lots of land in Qri, including the land before the final subdivision of the Defendant’s land and the instant land, and had Qri’s land located in Qri.

2) Since around 1978, Boan-gun purchased land, etc. owned by the Defendant in the above village group, completed the registration of ownership transfer in the name of the Gun, completed the registration of ownership transfer in the name of the Gun, conducted the land flatization work, and implemented a rural house improvement project with a content that lowers the site for housing to village residents. Of the instant ditches recovered as part of the said project, some of the instant ditches are adjacent to the south side of the Defendant’s land, and the Defendant was aware that such situation and the implementation process of the said project had been completed.

3) Boan-gun, while carrying out the above project, had village residents build a new house with respect to the specific housing site scheduled to be destroyed by each village resident without the final completion of the land partition procedure. Accordingly, village residents determined the location and size of the land to be destroyed following the completion of the construction work of Boan-gun’s site rearrangement work, and newly constructed the housing by designating the construction base point of the land to be destroyed by each resident from the civil engineering engineer of the Gun Office, and by designating the construction base point of the land to be destroyed by each resident from the civil engineering engineer of the Gun office.

4) After the plaintiff and the defendant newly constructed a house on a site that was to be sub-satisfed, they completed the registration of initial ownership relating to each house on the same date, and the parcel number was indicated as the lot number at the time of the land where the land that was sub-satisfed to be sub-satisfed belongs. For six years thereafter, the court below finally divided the land of this case and the defendant's land into the lot number and size at the time of May 28, 1980, and sold the land of this case and the defendant's land to the plaintiff and the defendant on December 21, 1984. The plaintiff and the defendant completed the registration of initial ownership relating to the land which was sub-satisfyd to this end

5) However, the size of the Defendant’s land, which the Defendant was unfishered, is 228m, while the size of the land being used as the site of the Defendant’s housing, etc., is 360m in total (=28m in the Defendant’s land + 86m in the instant land + 46m in the site of the Defendant’s housing, etc. among the ditches of this case), and the size of the land is about 60% in size of the Defendant’s land.

6) The Defendant’s land consists of the ditches and the boundary between South and North, and the instant land is adjoining to the south. At present, the instant land is currently used as the Plaintiff’s housing site. The Defendant’s housing, etc. is not only the Defendant’s land but also the instant land located south beyond the instant ditch, and it was easily known that the instant land, etc., including the Defendant’s housing, was located outside the boundary line of the Defendant’s land if it is aware of the location of the reconstructed.

7) The entrance and part of the pipes, which appears to have been laid underground for the drainage of groundwater, are exposed to the ground. According to the above facts, the Defendant appears to have been well aware of the situation of surrounding land, including the location, pattern, etc. of the ditches before the land was opened. As alleged in such, it is difficult to view that the Defendant, as the Defendant did not know of the location, boundary or size of the ditches of this case located in the middle of the instant land, was a part of the instant land, or that the instant land was located outside the boundary line of the instant land and the area of the adjoining land was likely to have been confused with the part of the instant land that was laid underground. In light of the above legal principles, it is difficult to view that the lower court, as seen earlier, could have easily determined that the instant land was located outside the boundary line of the instant land and the adjoining part of the instant land, the size and size of the adjoining part of the instant land could have been easily inferred by the Defendant’s construction, which was located outside the boundary line of the instant land.

D. Nevertheless, the lower court, without closely examining the above circumstances, concluded that the presumption of possession of the Defendant’s autonomous possession does not reverse even if the Defendant’s housing, etc. violated the Plaintiff’s land, and that the Defendant’s presumption of possession of the instant land was completed by deeming that the presumption was not reversed. In so doing, the lower court erred by misapprehending the legal doctrine on possession of the land independently, or by failing to exhaust all necessary deliberations as to the Defendant’s intent, thereby adversely affecting the conclusion of the judgment. The allegation contained in

3. Therefore, without further proceeding to decide on the remaining grounds of appeal, 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 In-bok

Justices Park Jae-hee in charge

Justices Park Young-young

Justices Kim Jong-il