1. Where the exercise of the right is intended to inflict pain and damage on the other party, and there is no benefit to the person who exercises the right, and it can be objectively deemed that such exercise is in violation of social order, the exercise of the right is not allowed as an abuse of rights, and the subjective requirement that the exercise of the right is to inflict pain and damage on the other party can be ratified by objective circumstances, which are seen as exercising the right that lacks legitimate interest of the right holder. Whether the exercise of the right constitutes an abuse of rights should be determined by individual and specific cases (see, e.g., Supreme Court Decisions 2003Da40422, Nov. 27, 2003; 2010Da59783, Dec. 9, 2010).

2. According to the reasoning of the first instance judgment as cited by the lower court and the evidence duly admitted, the following facts and circumstances are revealed.

A. In the public sale procedure conducted on February 22, 2012 by the Defendant, the Plaintiff was awarded a bid of KRW 625 square meters of land as indicated in the lower judgment, the land category of which is a ditch (hereinafter referred to as “instant land”) in KRW 13,99,000, and completed the registration of ownership transfer on May 4, 2012.

B. There are 88 meters of a ditch of concrete material (hereinafter referred to as “the ditch of this case”) on the part of the ship, which connects 1, 2, 3, 4, 5, 5, expenses, and each of the matters in sequence, indicated in the attached drawings No. 1, 2, 3, 4, 5, 5, and 5 in the judgment below,

Considering that the land category of the instant land was changed to a ditch on July 24, 1970, the instant ditch appears to have reached the present time by remodeling and repairing it around that time or after its installation. In light of the public sale practice, the Plaintiff appears to have been awarded a successful bid for the instant land upon knowing that the ditches are installed on the instant land. The instant ditch is located at the point of 2.5 km at the bottom from among the ditches consisting of the entire 3.5 km, and has been used as a farm road. Since the farmland supplied with agricultural water through the instant ditch reaches the tenth degree of 17 farmers, it is apparent that the said farm would suffer great damage to the agriculture in the event of closure or removal. In addition, in the event of the transfer of the ditch, it is difficult or highly likely to cause new damage due to the surrounding private land due to the heavy gradient, and it is more likely that the surrounding land might be buried due to the disaster risk and the surrounding land flow and the surrounding land flow, etc., and it becomes more likely that the surrounding land might be buried.

Accordingly, with respect to the Plaintiff’s request to transfer the ditch of this case or to make it underground, the Defendant refused to set up a cover for some sections of the ditches of this case, which are contained in the building, on the ground that it is possible to set up a cover, but other requirements are mainly difficult to implement immediately in light of the risk of disaster and financial conditions.

D. Meanwhile, the instant land is not a square, but a shape that has been rapidly increased depending on the ditches of the instant case, and its width is very narrow, and it also forms a rhythm, so it is substantially impossible to construct the instant land, and it is also difficult to use it as a general land.

E. Nevertheless, the Plaintiff demanded the removal of the ditch of this case, and, if not, demanded that KRW 11,340,000,000, which is the acquisition price of the land of this case, be paid every year as usage fees of KRW 81%, which is 13,99,000, which is the acquisition price of the land of this case. As the Defendant rejected this, the Plaintiff filed a lawsuit seeking the removal.

F. Meanwhile, the Defendant has an intention to purchase the instant land, including the ditches of this case. In light of this, the lower court made a compulsory adjustment decision and a recommendation for reconciliation, which states that the Defendant purchased the instant land pursuant to the expropriation procedure and paid an amount equivalent to KRW 1,000,000 per annum from a certain date to a certain date, or the amount equivalent to the usage fee of KRW 4,00,000,000, the Plaintiff did not accept all of the aforementioned decisions and agreed to remove the instant ditches.

3. Examining the above facts and circumstances in light of the legal principles as seen earlier, the Plaintiff’s exercise of ownership only by means of removing the ditches of this case, which are used as a farm road, even though the Plaintiff, knowing the construction of the ditches of this case, demands the return of unjust enrichment equivalent to the ordinary usage fees, etc., upon the Plaintiff’s knowledge of the fact that the ditches of this case was installed, does not have any particular benefit to the Plaintiff himself. On the other hand, the Defendant is against the basic principles that the Defendant should exercise the right to property, as it requires enormous time and expenses for the establishment of a new farm road and may increase the risk of disaster, and the damage is very great, as well as the exercise of the right to property, the Plaintiff’s claim of this case seeking the removal

4. Nevertheless, the court below rejected the defendant's defense that the plaintiff's seeking removal of the ditch of this case constitutes an abuse of rights, citing only the reasons of the judgment of the court of first instance against this without sufficiently examining the above circumstances.

Therefore, the court below erred by misapprehending the legal principles on abuse of rights and failing to exhaust all necessary deliberations, which affected the conclusion of the judgment. The ground of appeal assigning this error is with merit.

5. 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 In-bok

Justices Kim In-bok, Counsel for the defendant

Justices Kim Gin-young