토지인도
The judgment below
The part of the claim for removal is reversed, and the corresponding part of the judgment of the court of first instance is revoked, and this is applicable.
1. The defendant's grounds of appeal are examined.
Based on its stated reasoning, the lower court determined that the Defendant did not have a legitimate title to possess each of the instant railway sites.
In light of the relevant legal principles and records, the lower judgment is justifiable, and contrary to what is alleged in the grounds of appeal, the lower court did not err and adversely affected the judgment.
2. We examine ex officio the lawfulness of the part requesting removal of the lawsuit in this case.
A. Article 74 of the State Property Act provides that “When a person occupies State property or installs facilities thereon without justifiable grounds, the head of a central government agency, etc. may remove such facilities or take other necessary measures by applying mutatis mutandis the Administrative Vicarious Execution Act.” Thus, where the procedure for vicarious administrative execution is recognized, it is not allowed to seek removal of facilities by means of civil procedure (see, e.g., Supreme Court Decision 2015Da242375, Jul. 11, 2017).
The Plaintiff asserts that the Defendant should remove the instant building without any title since it was built on each of the instant railway sites. However, since the Plaintiff, the managing authority of each of the instant railway sites, acting on behalf of the Minister of Land, Infrastructure and Transport, can remove the instant building built on each of the instant railway sites, which is State property, by means of administrative vicarious execution under Article 74 of the State Property Act, it is reasonable to deem that it is not possible to seek removal of the instant
C. Nevertheless, the lower court further determined on the merits on the premise that there was a benefit in protecting the rights in the part of the instant lawsuit.
The lower court erred by misapprehending the legal doctrine on the benefit of lawsuit, thereby adversely affecting the conclusion of the judgment.
3. Therefore, the part of the judgment of the court below regarding the removal claim is reversed, and this part is sufficient for this court to directly render a judgment, and thus, it is out of the judgment of the court below.