In a case where the State or a local government incorporates a private land into a road site under a certain title that can occupy the land, such as taking the procedure for acquiring the public property or obtaining the consent of its owners for the use thereof, whether the presumption of autonomous possession is broken (negative)

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

Supreme Court Decision 99Da41893 delivered on January 14, 2000 (Gong2000Sang, 387) Supreme Court Decision 2000Da64472 Delivered on March 27, 2001 (Gong2001Sang, 1001Sang, 101) Supreme Court Decision 2007Da42112 Delivered on December 27, 2007 (Gong2008Sang, 133)

Plaintiff (Attorney Kim Byung-chul, Counsel for the plaintiff-appellant)

Kimpo-si (Attorney Kim Jong-jin, Counsel for the defendant-appellant)

Seoul Central District Court Decision 2008Na13554, 13561 Decided December 9, 2008

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

The grounds of appeal are examined.

If the nature of the source of possessory right of real estate is not clear, the possessor is presumed to have occupied the real estate in good faith, peace, and public performance by his own will under Article 197(1) of the Civil Act, and such presumption applies likewise to a case where the State or a local government occupies the real estate of another person with the knowledge of the absence of legal requirements such as a juristic act which may cause the acquisition of ownership at the time of commencement of possession, and other legal requirements, barring any special circumstances, the possessor shall be deemed not to have the intention of rejection of the ownership of another and not to possess the real estate. Thus, the presumption of possession with the intention to own shall be presumed to have been broken. However, in a case where the possessor without the consent of the owner of the land is incorporated into the road site by a certain source of authority, such as taking the procedure for the acquisition of public property or obtaining the consent of the owner of the land at his own expense or with the consent of the owner of the land.

According to the reasoning of the judgment below, the court below rejected the defendant's defense and counterclaim on the ground that the defendant's defense and counterclaim that the defendant occupied the land of this case for 20 years or longer and the prescription period for possession has expired, since the defendant failed to prove that the compensation agreement was reached between the plaintiff and the plaintiff with respect to the land of this case, or that the compensation was paid due to the conclusion of a sales contract, the presumption of autonomous possession was broken.

However, according to the fact-finding of the court below, the defendant received a written consent from the plaintiff around February 1983, including the land scheduled to be incorporated into the road from Kimpo-mix-mix. On March 22, 1983, the compensation amount was calculated as KRW 2,025,00 by requesting an appraisal for the calculation of compensation amount for the road site. On September 15, 1984, the land category was changed to that of the road after the division. In particular, according to the road site purchase ledger prepared at the time, the compensation amount of the land was stated as KRW 1,417,50 on June 30, 1983, and the land was included as KRW 40,50 on November 15, 1984, and the compensation amount was not included in the above two-lane road purchase plan. In addition, the plaintiff and the defendant had already been included in the above two-lane road purchase plan. The compensation amount of the above land was not included in the two-lane road purchase plan.

Nevertheless, the judgment of the court below which rejected the defendant's assertion on the prescriptive prescription on the ground that the defendant's presumption of the possession of the land in this case was broken, is erroneous in the misapprehension of the rules of evidence or in the misapprehension of the legal principles on the presumption of the possession

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Young-chul (Presiding Justice)