[Defendant-Appellant]

Attorney Lee Dong-su, Lee Dong-soo, Lee Do-young

Law Firm Doz.

Attorney Kim Ho-nam

1. A. The lower court acknowledged the following facts by citing the reasoning of the first instance judgment.

(1) On April 12, 2002, the Plaintiff completed the registration of ownership transfer for 1/2 shares out of 317 meters of the 317-m (hereinafter referred to as the “1-m (hereinafter referred to as the “instant land”) of the 317m (Seoul-dong-gu, Busan-gu), due to the inheritance due to the consultation and division on January 1, 2002. On January 26, 2016, the Plaintiff completed the registration of ownership transfer for the remaining 1/2 shares due to the sale on January 22, 2016.

(2) On April 12, 2002, the Plaintiff completed the registration of ownership transfer for 1/2 shares out of 264 square meters of 264 square meters of Do-dong B-dong B-dong, Busan (hereinafter “the land No. 2 before division”). However, on October 2, 2003, the above land is "the land No. 2 of this case" and "the land No. 1 of this case" as "the land No. 2 of this case," and "the land No. 1 of this case" as "the land of this case"), D road No. 46 meters, E road No. 23 meters, and F road No. 2 were transferred to a third party. The remaining land except the land No. 2 of this case.

(3) On March 29, 1949, the Plaintiff’s father G (hereinafter “the Plaintiff”) completed the registration of transfer of right due to the sale on March 14, 1949 as to one-half portion of the land No. 1 in the instant case, and completed the registration of transfer due to the partition of co-owned property as to the land No. 2 in the instant case before partition on October 5, 1956.

B. Next, the court below determined as follows: ① the land category of the above land was already changed from November 30, 1934, before the deceased acquired ownership of 1/2 shares among the land No. 1; ② the land category of the land No. 2 before the division was changed to around 1959; ② the land No. 2 before the division was divided into a partition of co-owned property in Busan Dongdong-gu H; ② the land No. 2 before the division appears to have been used as the passage of surrounding land before the division, unlike the land No. 2 after the division, as it appears to have been used as the passage of surrounding land; ③ the land No. 1, which was offered as the extension line of the land No. 1 as the extension line of the land, was provided as the passage of the land category changed along with the land division on Nov. 30, 1934; ④ the land category was narrow between surrounding land sites; ④ the land No. 2 before the division and the land of this case was offered as the exclusive right to use of the above land for the first and its neighboring land for the first year.

2. However, it is difficult to accept the above determination by the court below for the following reasons.

A. In a case where a private land is naturally occurring or is classified as a prospective road site and actually used as a road for the public traffic of the general public, when a landowner grants a neighboring resident or the general public the right to free access to the land by providing the land as a road, or in interpreting the intent that he/she waives exclusive, exclusive, and exclusive rights to use and benefit from the land, the determination shall be made with caution by comprehensively taking into account various circumstances, including the details and period of ownership of the land, the situation and period of possession thereof, the details and scale of the owner’s provision of the land for the public use, the existence of the owner’s interest or benefit from the provision of the land, the location and form of the relevant land, the relationship with the neighboring land, and the surrounding environment (see, e.g., Supreme Court en banc Decision 2016Da264556, Jan. 2

B. The record reveals the following facts.

(1) Although the time when each of the instant lands was actually used as a road for the general public’s traffic, the Defendant asserts that since 100 years ago, each of the instant lands was provided for the passage of the general public. The Plaintiff also asserted that the Plaintiff had already been used as a passage between surrounding farmland at the time of acquiring each of the instant lands.

(2) The instant land No. 1 is a Class 3 road with a width of about 12m to 15m, and the instant land No. 2 is a Class 2 road with a width of about 8m to 10m. Examining the factual basis and the following circumstances revealed by the record in light of the legal principles as seen earlier, it is difficult to deem that the duly admitted evidence alone proves that each of the instant land was renounced by the owner’s exclusive, exclusive, and exclusive rights to use and water was given up by the time when the land was offered as a public road for the general public.

(1) According to the Defendant’s assertion, each of the instant lands was already used as a road around the Japanese colonial era. However, there was no submission of materials by which the owner of each of the instant lands at that time knew of the developments leading up to the provision of each of the instant lands for public use.

(2) According to the Defendant’s assertion, the land No. 1 in this case was divided from 0 land in Busan Dong-gu, Busan, which is the mother land on November 30, 1934, from H on July 20, 1959, and the land No. 2 in this case was divided from the mother land on July 20, 1959, but no specific process as divided is revealed. However, in addition to the land No. 1 in this case around November 30, 1934, the land No. 1 and P, which are provided from the extension line of the above land, are divided from the mother land on the same date to the road, and the land category was changed. Considering that these land was divided from the mother land on the same date on the same date, it cannot be excluded from the possibility that they were established as a road and used for public passage.

(3) Comprehensively taking account of the parties’ arguments, the land adjacent to each of the instant lands appears to have been farmland at the time of the Japanese colonial era. However, the specific circumstances revealed that each of the instant lands was used as a road, thereby securing and increasing utility value of the adjacent land, and there was no submission of data on the circumstances, such as at the time of, or thereafter, the Joseon General or the Defendant, either lawful acquisition procedure with the property for public use, or possession of each of the instant land with the owner’s approval for use.

D. Nevertheless, the lower court determined that each of the instant lands was renounced without further proceeding to specifically examine the details and process of the first offer to the public for use, whether the owner’s interest or interest in the provision of the land exists, etc., and solely based on the circumstances in its reasoning. In so doing, the lower court erred by misapprehending the legal doctrine on the waiver of exclusive and exclusive use and right to benefit, etc., thereby failing to exhaust all necessary deliberations.

3. Therefore, without further proceeding to decide on the remaining grounds of appeal, 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 Park Sang-ok

Justices Noh Jeong-hee

Justices Kim Jae-hwan in charge