수용 여부가 불분명한 토지의 자주점유의 추정에 대한 비판적 고찰 : 일제하 조선농지개발영단이 설치한 저수지의 제당부지 사안의 경우- 대상판결 : 대법원 2023. 6. 29. 선고 2020다290767 판결

The Korean Supreme Court reversed the original judgment holding that it could not be ruled out that the Korea Farmland Development Agency had lawfully acquired ownership of the land. The possession in the capacity of owner is presumed when the nature of the source of occupancy that objectively caused the acquisition of occupancy is not clear. The possession in the capacity of owner is also presumed when the state or local government occupies the property. However, despite the practical necessity of the presumption, it should be applied with caution and in a very limited manner in the case of state or local government possession in the capacity of owner that the expropriation of the land is unclear. This is especially true where, as in the present case, the possession in the capacity of owner in question was initiated by a de facto imperialist authority under the Japanese colonial period. Historically, the installation of the reservoir was a forced and coercive project that lacked social consensus and caused social conflict. In addition, it is necessary to consider the unjust colonial practices of expropriation, such as intimidation of landowners who disagreed and the falsification of consent forms and other related documents. It is also worth noting the Korean resistance movement that continued even after the installation of the reservoir. Despite this historical background, this Judgment concluded that the trial court erred in its legal reasoning by denying the presumption of the possession in the capacity of owner. It was based on the possibility that the state or local government may have legally acquired ownership of the land. It is regrettable that the Korean Supreme Court failed to make a historical evaluation of the reservoir installation project which was forcibly carried out under the leadership of the Korea Farmland Development Agency during the Japanese colonial period. Furthermore, in the absence of any data on whether the land in this case was expropriated or not, there is no reasonable reason to presume the possession in the capacity of owner.