In case where the State completes the registration of real estate as State property through the procedures for public notice of non-state property pursuant to Article 8 of the State Property Act with respect to real estate, the meaning of the non-performance of the burden of proof in the acquisition by prescription on the registry, and the existence of the negligence in the commencement of possession (affirmative in principle)

In order to recognize the period of prescription for acquisition of a registry, there shall be no negligence in the commencement of possession, and the burden of proof lies in the claimant, and the possessor is not at fault in the belief that the possessor is his/her own possession. However, in cases where the existence of an owner on the registry of real estate may be known, such as the existence of an owner on the registry of real estate, even though the owner is missing and the existence of an owner on the registry of real estate is unknown, it does not constitute a real estate without fault. Therefore, in cases where the State completed the registration of a real estate, the owner of which can be known, as state-owned property and started possession of the real estate after the procedure

Articles 245(2) and 252(2) of the Civil Act; Article 288 of the Civil Procedure Act; Article 8 of the State Property Act

Supreme Court Decision 2005Da12704 Decided June 23, 2005 (Gong2008Ha, 1600) Supreme Court Decision 2008Da45057 Decided October 23, 2008

Plaintiff 1 and one other (Attorney Kim Jae-soo, Counsel for the plaintiff-appellant)

Republic of Korea and one other (Law Firm LLC et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2015Na205723 decided March 31, 2016

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. For the acquisition by prescription of a registry, there is no negligence in the commencement of possession, and the burden of proof lies in the claimant, and the possessor is not negligent in believing that he/she is his/her own possession (see, e.g., Supreme Court Decision 2005Da12704, Jun. 23, 2005). However, in cases where the existence of an owner on the registry is known that there is another owner, such as the existence of an owner on the registry, even if the owner is missing and it is impossible to know whether he/she is alive, such real estate does not constitute a non-real estate, and thus, in cases where the State registered a real estate, the owner of which is separately known, as State property after completion of the registration as State property through the procedures for the public announcement of non-real estate pursuant to Article 8 of the State Property Act, barring any special circumstance, the State is negligent in believing that he/she is his/her own ownership in the commencement of possession (see Supreme Court Decision 2008Da45057, Oct.

2. According to the reasoning of the judgment below, the court below rejected the plaintiffs' claim that the change of the registered titleholder's name in the name of the defendant Republic of Korea based on the premise that the land in this case is attributed property or non-owned real estate is invalid, and that the registration of change of the registered titleholder's name in the name of the defendant Seoul Special Metropolitan City is invalid, and that the registration of change of ownership in the name of the defendant Seoul Special Metropolitan City is invalid, and that the defendant Republic of Korea occupied the land in this case in good faith and public performance and without negligence for ten years after the registration of change of the above indication was completed.

3. However, in light of the above legal principles, the court below's determination that the defendant Republic of Korea was not at fault with respect to the commencement of possession of the land of this case is not acceptable for the following reasons.

A. Review of the reasoning of the lower judgment and the record reveals the following facts.

1) The land before the instant partition was divided into Nonparty 1 (registration on February 3, 1939), Nonparty 2 (registration of Nonparty 1’s wife, February 8, 1939) and Nonparty 3 (registration of Nonparty 3 and February 18, 194) and was divided into the land at Seoyang-gun in Gyeonggi-do ( Address 1 omitted) and ( Address 2 omitted) around June 1956. After the instant partition including the instant land, Nonparty 3 also entered in the registry as the owner of each land.

2) In addition, Nonparty 1 and Nonparty 2’s address are indicated in the registry of the land before the instant partition as “Masung (Masung) 22” (the address at the time of Jongno-gu Seoul ○○○○○○ Dong 22), and Nonparty 3’s address as “Masung-ro ○○○○22,” respectively. Nonparty 1 had completed the registration of transfer on the ground of donation to Nonparty 4 (the address of Nonparty 4) on March 25, 1940, and the address of Nonparty 4 on the registry is also considered as “Masung-si ○○22,” respectively.

3) In the distributed farmland register prepared on each land after the division of this case, except the land of this case, the victim of the land of this case is written as Nonparty 3, ( Address 1 omitted), ( Address 3 omitted), ( Address 4 omitted), ( Address 5 omitted) through ( Address 6 omitted), respectively, as Nonparty 4.

4) Meanwhile, the legal domicile of Nonparty 1’s deceased Nonparty 5’s deceased deceased Nonparty 5 is identical to the domicile of Nonparty 1, Nonparty 2, Nonparty 3, and Nonparty 4 prior to the filing of the Seoul Jongno-gu ○○○ 22, and the above certified transcript indicated that Nonparty 2 reported the death as the person with parental authority.

5) On April 21, 1993, Goyang-si, while conducting a fact-finding survey on state property, found the land in this case as non-owned real estate owned by △△△, Japanese, and followed procedures for the preservation of rights, such as procedures for public announcement of non-owned real estate under the State Property Act, and registered the change of the indication of the registered titleholder in the name of the defendant in the name of the Republic of Korea on July 21, 1994.

B. According to the above facts and records, if the non-party 3 transferred the ownership of the land prior to the subdivision of this case on February 18, 194, the non-party 3 had already been in effect after the establishment of the new name under the Japanese colonial rule, and thus, the defendant Republic of Korea confirms the registry of the non-party 3's domicile at the address of the non-party 3, in mind of the possibility that the new name was the Republic of Korea, which is the domicile of the non-party 3, and a certified copy of the registry at the domicile at the domicile of the non-party 3, the registration of the change of the ownership of the land at the time of the new domicile. If the non-party 3 did not know the possibility that the farmland was distributed in accordance with the Farmland Reform Act, since the land category before the subdivision of this case was the "responding", it would be difficult to view that the non-party 3 was the owner of the land at the time of the new name or the new name of the land in question, and if so, it appears that the registered owner was not the owner of this case.

C. Nevertheless, the court below, without properly examining the above points, accepted the defendants' defenses to acquire the prescription period, and did not further determine the defense to acquire the prescription period. In so doing, the court below erred by misapprehending the legal principles on the requirements to acquire the prescription period, failing to exhaust all necessary deliberations, which affected the conclusion of the judgment. The ground of appeal assigning this error is with merit.

4. It is so decided as per Disposition by the assent of all participating Justices on the bench, without examining the remaining grounds of appeal, and the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination.

Justices Kim Shin (Presiding Justice)