[1] Whether the presumption of possession with autonomy can be reversed solely on the ground that the possessor's title to possession with autonomy is not recognized

[2] The case where the presumption of possession with independence is reversed

[3] Whether the owner owns the real estate prohibited from disposal without permission from the competent authority despite the knowledge that the disposal was not permitted

[1] In the case of the acquisition by prescription, the intention of possession, which is the requirement for the possession with intention to hold is objectively determined by the nature of the source of the possessor’s right. However, if the nature of the source of the possessor’s right is not clear, it is presumed that the possessor has possession with his/her intention to hold it pursuant to Article 197(1) of the Civil Act. Thus, the possessor does not have the responsibility to prove that the possessor himself/herself is the possession with the nature of the source of the possessor’s right, and there is the burden of proving the possession with respect to the other party who asserts that the possessor is the possession with no intention to hold it. Thus, even in cases where the possessor asserts the title of the possession, such as the purchase and sale or donation, but this is not recognized, unless the possessor bears the burden of proving the source of the right to hold it,

[2] The term "the intention of possession", which is the requirement for independent possession, refers to the intention of exercising exclusive control as if it were one's own property by excluding the ownership of another. Thus, the presumption of autonomous possession is reversed even when it is proved by the title of typical possession such as superficies, chonsegwon, and leases, as well as when it is proved that the possession is by the title of typical possession such as superficies, right of lease, etc., and even if it is not by the title of typical possession, it cannot be viewed that the possession with the intention of exercising exclusive control as if it were not by the possession by the title

[3] Since a person who knowingly occupies real estate, the disposal of which is permitted only upon permission by the competent authorities under the law, and the disposal of which is prohibited without permission, even though he/she was aware that he/she had no permission to dispose of such real estate, he/she had an intention to exclude ownership of the real owner of such real estate and to exercise exclusive control as his/her own property at the time of commencement of possession, it cannot be deemed that he/she had an intention to avoid the ownership of the owner

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

[1] [2] [3] Supreme Court Decision 94Da5358 delivered on November 24, 1995 (1] Supreme Court en banc Decision 82Da708, 709, 82Meu1792, 1793 delivered on July 12, 1983 (Gong1983, 1248), Supreme Court Decision 89Meu1840 delivered on March 9, 1990 (Gong1990, 870), Supreme Court Decision 94Da16458 delivered on November 29, 197 (Gong1995, 659) / [2] Supreme Court Decision 90Da21381, 21398 delivered on September 13, 1995 (Gong197, 1995; 195Da398995 delivered on September 19, 195)

Geum-gu Busan Metropolitan Government (Attorney Kim Jong-dae et al., Counsel for the defendant-appellant)

Coiner (Attorney Lee Jae-hun et al., Counsel for the defendant-appellant)

Busan High Court Decision 93Na2988 delivered on September 30, 1994

The judgment below is reversed. The case is remanded to Busan High Court.

The supplemental grounds of appeal as stated in the grounds of appeal and supplemental appellate brief are examined together.

1. According to the reasoning of the judgment of the court below, the above land was incorporated into the above 19 square meters of the above 429 square meters of the above 19-year-old 3-gun dong-gun 1, and the above 1,194 square meters of the land was originally used by the defendant on May 13, 191, but the above 16-year-old dong-gun 1,194 square meters of the land was divided into the above 16-year-old dong-gun 1, and the defendant completed registration of ownership transfer of the above 7-year-old dong-gun 1,000-dong 1,000-dong 1,000-dong 1,000-dong 6,000-dong 1,000-dong 3,000-dong 1,000-dong 1,000-dong 6,000-dong 16,000.

2. In the case of prescriptive acquisition, the intention of possession, which is the requirement for possession independently, is objectively determined by the nature of the source of possessor’s right. However, if the nature of the source of possessor’s right is not clear, it is presumed that the possessor himself/herself possesses possession with the intention of possession pursuant to Article 197(1) of the Civil Act. Thus, the possessor is not liable to prove that he/she is possession independently by the nature of the source of possessor’s right, and the possessor bears the burden of proof as to the other party who asserts that he/she is possession without the intention of possession. Thus, even if the possessor assertss the title of possession, such as the purchase or gift, but does not have the burden of proof as to the original source of possessor’s right, the presumption of possession cannot be deemed to be reversed or as the owner’s possession with the nature of the source of possessor’s right, as long as the possessor does not have the burden of proof as to the original source of possession, and thus, it cannot be viewed as one’s own possession with the intention of possession as one’s own right.

3. According to the records, the plaintiff consistently asserted that he was occupying the land of this case by gifting it from the defendant 1 to the end of argument, and Article 5 of the Decree (amended on June 10, 192) was enforced on the land of this case. The same shall not be applicable to cases where the plaintiff transferred the property of this case or offered it as security or bears obligations without permission under the preceding paragraph. It shall be null and void if the plaintiff transferred the property of this case to the 19-year government office or did not sell it to the 19-year government office without permission for the transfer of the land of this case. The court below decided that the plaintiff's disposal of the land of this case was not permitted on the 19-year government office's first 7th government office's first 7th government office's first 7th government office's first 7th government office's first 7th government office's first 7th government office's first 6th government office's second 7th government office's first 9- local government office.

4. Therefore, without examining the remaining grounds of appeal, the judgment of the court below shall be reversed, and the case shall be 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.

Justices Park Jong-ho (Presiding Justice)