1. According to the reasoning of the judgment below, the court below acknowledged the following facts: (a) on November 1, 1991, the Plaintiff: (b) sold 46.6/94 of the portion of the 94m2 railway site in Seodaemun-gu, Seoul on November 1, 1991, and registered the share transfer registration on November 28, 199; (c) on the part of the instant land and its neighboring land, the Defendant newly constructed a reinforced concrete structure slive roof, three underground floors, and five-story commercial buildings on the ground; (d) the above commercial building occupies sevenm of ground among the instant land; and (e) the remaining parts are used as the commercial passage and parking lot site; and (e) the Defendant, as a co-owner seeking preservation, was obligated to remove the portion of the commercial building constructed on the 7mm2 ground and deliver the instant land to the Plaintiff; and (e) thus, (e) the removal of the remaining parts after the removal of the building, the removal of the remaining parts and the defense by the Plaintiff constitutes abuse of rights.

2. However, according to the record, it can be known that the Defendant Cooperative is a housing improvement redevelopment cooperative established under the Urban Redevelopment Act, and the Defendant Cooperative newly constructed the instant commercial building on the land within the redevelopment area as part of the implementation of the redevelopment project. However, according to Articles 17 and 20 of the Urban Redevelopment Act, the land owners within the redevelopment area where the housing improvement redevelopment project is implemented are naturally members of the Housing Improvement Redevelopment Cooperative, and the Defendant newly constructed the building facilities under the redevelopment project on the land owned by the Plaintiff. In light of the fact that the land in this case is land within the redevelopment area and the Plaintiff is a member of the Defendant Cooperative.

However, when a redevelopment project management and disposal plan is authorized and announced, the previous landowner shall not use or benefit from the previous land until the date of the announcement of the sale order (Article 41(7), (5), and Article 16 of the Urban Redevelopment Act). In addition, the developer of the redevelopment project has the right to expropriate the land necessary for the project within the redevelopment area (Article 38(1) of the Act), and when the redevelopment project is completed and the sale order is announced after the completion of construction works within the redevelopment project, the partner shall acquire the right to the site and constructed facilities sold by the redevelopment project or receive the settlement money, and at the same time, lose the right to the previous land (Articles 49 and 51 of the Act).

Therefore, the right to use and benefit from land is restricted as above, and it is not allowed to seek removal of newly constructed construction facilities and delivery of land by the redevelopment association on the ground that the land owner who is obligated to transfer the ownership of land to the redevelopment association is the land owner until there is a sale disposition.

The abuse of rights is against the mandatory provisions, so the court may decide ex officio, and if the legal principles of the Urban Redevelopment Act are the same as the above, the court below should have deliberated on the land in the redevelopment area as the land in question, whether the management and disposal plan was authorized, whether the plaintiff is a member of the defendant association, etc., and judged whether to allow the plaintiff's request for removal of the commercial building in this case and delivery of the land in this case. However, the court below should have determined that the plaintiff's claim in this case does not constitute an abuse of rights. Thus, the court below erred in the misapprehension of the legal principles of abuse of rights and incomplete deliberation, and in this regard

3. Therefore, the judgment of the court below is reversed and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Chocheon-sung (Presiding Justice)