2015Da207853 Registration of transfer of ownership

Pohang-si

1. A;

2. B

3. C.

4. D;

Daegu District Court Decision 2014Na302438 Decided January 21, 2015

July 9, 2015

The judgment below is reversed, and the case is remanded to the Daegu District Court Panel Division.

The grounds of appeal are examined.

1. If the nature of the source of possessory right of real estate is not clear, the possessor is presumed to have occupied in good faith, peace, and public performance with his/her own will under Article 197(1) of the Civil Act. Such presumption is equally applicable to the possession by the State or a local government, which is the managing body of the cadastral record, etc., and even in cases where the possessor asserts the source of right, such as purchase and sale or donation, but such assertion is not acknowledged, the presumption of possession cannot be deemed to be reversed or deemed to have been occupied by nature as long as the source of possessory right is not recognized unless the possessor bears the burden of proving the source of right of possession. (See, e.g., Supreme Court Decisions 9Da72743, Feb. 26, 2002; 2006Da28065, Feb. 8, 2007; 2007Da148167, Apr. 16, 207, 2008>

2. The lower court determined that the presumption of the Plaintiff’s possession of the instant land was broken, on the ground that the land category of the land cadastre on the Nam-gu E, Nam-gu, 58 square meters was changed to a road on November 12, 1964, and the Plaintiff opened the instant land, provided it to the general public for traffic, and occupied and used it as a road until now, and there was no statement to support the possibility that the Plaintiff acquired the ownership of the instant land on the old land cadastre, etc., and that the Plaintiff did not complete the procedure for acquiring the property for public use or submit any objective material supporting the possibility of the acquisition thereof in accordance with the relevant statutes.

3. However, we cannot accept the above judgment of the court below as it is.

A. The reasoning of the lower judgment and the evidence duly admitted by the lower court reveal the following.

① On November 12, 1964, the land of this case was partitioned from the Nam-gu [YYYY 287 square meters (hereinafter referred to as the “land before the division”) and the category of the land cadastre was changed from “B” to “B” to “B”. According to the Plaintiff’s universal main road expansion plan, K, L, M, etc., which is the neighboring land of this case, is also divided from the previous land on the same day, and the land category of land cadastre was changed to “road” and used as the existing road site along with the land of this case.

② Meanwhile, around July 1964, F acquired the ownership of the land prior to the instant subdivision, and died on August 1974 from among those without completing the registration of land category change and subdivision on the land cadastre, and around December 1974, the Defendants completed the registration of ownership transfer for the land prior to the instant subdivision due to inheritance. Thereafter, around September 1984, the Defendants sold 225 square meters of the remainder of the land prior to the instant subdivision to another person, while completing the registration of ownership transfer only for the above 225 square meters of the land.

③ Since the Plaintiff commenced occupation of the instant land on November 12, 1964, F did not assert ownership of the instant land or claim compensation to the Plaintiff.

④ After the land category of the instant land has been changed to a road, the Gyeongbuk-gun or the Plaintiff did not impose property tax on F or the Defendants, its heir.

B. Examining these circumstances in light of the legal principles as seen earlier, even if the Plaintiff failed to submit the documents on the acquisition procedure of the instant land, it is highly probable that the Plaintiff had gone through lawful procedures for acquiring the ownership of the instant land by the Plaintiff, etc. at the time of taking into account the developments leading up to the Plaintiff’s possession, the purpose of possession, and the relation to the disposal, use, and exercise of rights to the instant land and other land divided with the instant land. Therefore, it is difficult to view that the Plaintiff’s possession of the instant land is an unauthorized possession, and rather, it is reasonable to

C. Nevertheless, the lower court determined otherwise solely on the grounds indicated in its reasoning. In so determining, it erred by misapprehending the legal doctrine on the presumption of autonomous possession, thereby adversely affecting the conclusion of the judgment. The Plaintiff’s ground of appeal assigning this error is with merit.

4. Therefore, 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 Lee Jae-soo

Justices Kim Yong-deok

Justices Kim In-young