[1] In a case where a purchaser, by mistake, has occupied a part of the adjoining land in the name of the purchased site when acquiring the land along with the ground building and commencement of possession thereof, whether the possession of the adjoining land may be deemed possession frequently (affirmative)

[2] Where the actual area of a site subject to sale considerably exceeds the area on the register, the nature of the purchaser's possession of the excess (=the owner's possession)

[3] The case holding that it is difficult to view that the buyer knew that the building site area exceeds the area on the register, and the neighboring land was invaded by the neighboring land in case where the outer wall of the above ground was damaged by part of the neighboring land in the commencement of the purchase and possession of the building site, but the outer wall was in the actual boundary room, and the purchaser received the site based on the outer wall of the above building

[1] In a case where the purchase and possession of the site were commenced by acquiring the site along with the above ground building, if the purchaser believed that part of the adjoining land belongs to the land acquired by the purchaser due to mistake because the purchaser does not accurately confirm the boundary line with the adjoining land, and actually occupies a part of the adjoining land, barring special circumstances, the possession of the adjoining land is also deemed as possession with intention to own

[2] In a case where the area of the site of a building subject to sale exceeds considerably the area indicated in the registry, it is reasonable to deem that the contracting party was aware of such fact, barring special circumstances. In such a case, barring special circumstances, such as the seller’s agreement to acquire and transfer the ownership of the excess portion, the excess portion shall be deemed a sale of the right of occupation and use and thus, such excess portion shall be deemed a sale

[3] The case holding that it is difficult to view that the buyer knew that the building site area exceeds the area stipulated in the registry, in case where the buyer received the site based on the outer wall of the building because the outer wall of the ground was part of the neighboring land in the course of purchase and possession of the building site, but that the outer wall of the building in question was damaged by a part of the neighboring land in the course of purchase and possession of the building site

[1] Articles 197(1) and 245(1) of the Civil Act / [2] Articles 197(1), 245(1), and 563 of the Civil Act / [3] Articles 197(1), 245(1), and 563 of the Civil Act

[1] [2] Supreme Court Decision 98Da32878 delivered on Nov. 10, 1998 (Gong1998Ha, 2843) / [1] Supreme Court Decision 83Da12977 delivered on Feb. 14, 198 (Gong1984, 501), Supreme Court Decision 90Da12977 delivered on Feb. 22, 1991 (Gong1991, 1050), Supreme Court Decision 92Da2844, 91Da2851, 2868 delivered on May 26, 1992 (Gong192, 2012) / [2] Supreme Court Decision 96Da4135 delivered on Jan. 24, 1997 (Gong197, 1994; 198Da56945 delivered on May 26, 1995)

Plaintiff (Counter-Defendant) (Law Firm Mancheon, Attorney Lee In-chul, Counsel for defendant-appellant)

Defendant-Counterclaim (Attorney Lee So-young et al., Counsel for defendant-Counterclaim)

Busan District Court Decision 97Na9465, 9472 delivered on December 11, 1998

Of the main claim of the judgment of the court below, the part on the attached drawing 1 (B) and the part on the sub-claim 1 concerning the delivery, possession and use of the above part of the land, and the return of unjust enrichment due to the above possession and use of the above part of the counter-claim 1, and the above part of the case concerning the removal of the above sub-ground house (B) shall be reversed, and the case shall be remanded to Busan District Court Panel Division. The remaining appeal by the plaintiff (the counter-defendant) shall be dismissed. The costs of appeal

The grounds of appeal are examined.

1. The lower court determined on February 20, 1963 that the ownership transfer registration was made under the name of Nonparty 1 with respect to the land indicated in the separate sheet No. 1 (hereinafter “instant land”) of the lower judgment, and that on June 14, 1966, the ownership transfer registration was made under the name of the Defendant (Counterclaim Plaintiff; hereinafter “Defendant”) on the land, and on August 10, 1965, the Plaintiff (Counterclaim Defendant; hereinafter “Plaintiff”) purchased the previous land of this case on the land of this case on the land of this case on the land of this case on the land of this case which was located in the title No. 1 of the lower judgment, and that on August 12, 1965, the Plaintiff purchased the previous land of this case on the land of this case on the land of this case which was located in the title of this case on the land of this case on the land of this case, and on the land of this case on the land of this case which was newly constructed on the land of this case on the land of this case, the land of this case was constructed on the land of this case.

In the process of purchasing and occupying a site with a building on the ground, if the purchaser believed that part of the adjoining land belongs to the site that he/she acquired and actually occupied a part of the adjoining land as a result of an accurate verification of the boundary between the adjoining land and the adjoining land, barring special circumstances, the possession of the adjoining land shall also be deemed as possession with the intent to own it (see Supreme Court Decision 92Da284, 91Da2851, 2868, May 26, 1992). Meanwhile, if the area of the site exceeds that on the register, barring special circumstances, it is reasonable to deem that the contracting party was aware of such fact. In such a case, barring special circumstances, such as where the seller acquires ownership of the excess part and agrees to transfer it to the seller, the excess part shall be deemed the sale of the right of occupation and use, and therefore, the possession constitutes a possession with another owner in the nature of the title (see Supreme Court Decision 98Da32878, Nov. 10, 1998).

However, according to the facts and records acknowledged by the court below, the outer wall of the existing building, which was constructed on the ground before the merger of this case, was part of the land of this case, and the outer wall of this case was constructed on the wind that the plaintiff purchased the land of this case before the merger of this case. However, the outer wall of this case was used as the site of the above existing building. In the vicinity of the outer wall of the existing building at that time, the ground surface of this case was considerably higher than that of the first land before the merger of this case, and the plaintiff removed the existing building two months after the purchase and delivery of the site based on the outer wall of the existing building from the above non-party 2, and newly constructed the building of this case using the site as it is.

In light of the above circumstances, it is difficult to view that the Plaintiff knew that the area of the site of the existing building subject to sale exceeds considerably the area on the register, solely on the ground that the Plaintiff was aware that the area of the site of the existing building exceeds considerably the area on the register, the area of the land No. 1 prior to the merger of this case, which was registered for transfer of ownership by Nonparty 2. Of the instant land owned by the Defendant, the area of the 27 square meters in total among the instant land owned by the Plaintiff.

Nevertheless, without considering the above circumstances, the court below acknowledged that the plaintiff was aware of the fact that the area of the land delivered as the site of the existing building subject to the above sale exceeds considerably the area on the register. On this premise, among the land in this case where the existing building was invaded, the plaintiff should be deemed to have purchased only the right of occupation and use, and thus rejected the plaintiff's claim for the registration of transfer of ownership due to the acquisition by prescription for the above part of the land. Rather, the court below rejected the plaintiff's claim for the registration of transfer of ownership due to the acquisition by prescription for the above part of the land. The court below erred by misunderstanding the legal principles as to autonomous possession and failing to exhaust all deliberation, citing the defendant's claim for the return of unjust enrichment due to the delivery and use of the part of the land in this case.

2. On November 10, 1973, the court below found that the above part of the building was registered for the transfer of ownership under the name of Nonparty 3 on the land of this case with respect to the land of this case 149 square meters (hereinafter the above 2nd land before the annexation), and that the plaintiff purchased the above land from Nonparty 3 on May 3, 1983 and completed the registration for the transfer of ownership on the above land under the name of the plaintiff on May 3, 1983, and newly constructed one unit of the house of block stringle roof (hereinafter the above 2nd building) on the land of this case on the ground of this case on the premise that the above part of the building of this case 2nded with the land of this case 13 square meters on the land of this case on the ground of the above 3nd building on the land of this case, which was constructed on the ground of this case on the premise that the above part of the building of this case 2nd building was occupied by the plaintiff on the land of this case 13rd.

In light of the records, the above recognition and decision of the court below is just, and there is no error of law by misunderstanding the facts against the rules of evidence or misunderstanding the legal principles on the prescriptive acquisition due to violation of the rules of evidence such as theory of lawsuit.

3. Therefore, among the judgment of the court below, the part on the main claim of this case concerning sub-, sub-, sub-, sub-claim and the part concerning the delivery of the above land and the return of unjust enrichment due to possession and use of the above part among the counter-claim claim, and the above part of the case concerning the removal of the above sub-ground housing. The above part of the case is reversed and remanded to the court below. The remaining appeal by the plaintiff is dismissed. The costs of appeal against the above dismissal of appeal are assessed against the plaintiff. It

Justices Lee Jae-hee (Presiding Justice)