[점유권확인청구사건][하집1986(1),48]
Whether there is legal interest in action seeking only confirmation of possessory right
Even if the de facto cultivation of an article is confirmed by a judgment that has characteristics that can change easily in its nature, and is based on the possessor’s possession right at any time, other possessor can easily make a claim that differs from the contents of the final judgment, depending on changes in de facto control condition. Thus, the claim for confirmation of possession right cannot be an effective remedy to eliminate legal uncertainty of the parties. Thus, there is no benefit in the lawsuit, barring special circumstances that should not be immediately determined by law, barring special circumstances.
Article 228 of the Civil Procedure Act
Driedness
Chang-gun
Jeonju District Court of the first instance (No. 31 May 31, 1985 Gahap46)
1. The plaintiff's appeal is dismissed.
2. The costs of appeal shall be borne by the plaintiff.
The defendant shall revoke the judgment of the first instance.
It is confirmed that possessory right to each land listed in the attached list is the plaintiff.
The judgment that the total costs of the lawsuit shall be borne by the defendant was sought.
The plaintiff is originally public waters whose ownership transfer registration has been made under the name of the defendant, and the land in the separate sheet (hereinafter, the land in this case is originally public waters) shall be filled up by a stone embankment with a height of 3 meters and 740 meters in length between August 31, 1976 and December 31 of the same year, and shall be filled up by the plaintiff. Since from September 20, 1981 to October 19 of the same year, the plaintiff occupied the land in this case after inserting heavy equipment and completing opening field construction and rearrangement of farmland, although the defendant cultivated the land in this case including the land in this case, the defendant requested the plaintiff to conclude a purchase and sale contract in accordance with Article 2 (2) of the Addenda of the Enforcement Decree of the Local Finance Act that the land in this case, including the land in this case, will be sold under a negotiated contract on November 6 (Adjustment 1840) of the date of November 1, 1983.
Therefore, unlike other real rights, the right of possession does not include any benefit from the control over an object. It is a system to maintain social peace and order by respecting the de facto state of control over the real right, protecting it as a right, and prohibiting disturbance by the power. The possession should be bona fide or malicious, representing a legitimate right, or being protected regardless of whether it is or not. However, the de facto control over an object should be easily changed in its nature, and even if it is confirmed by the judgment that the possessor has the right of possession at a market price point, other possessor can easily assert different arguments from the final judgment. Thus, the right of possession cannot be an effective remedy to eliminate legal anxiety of the parties. Thus, if the individual legal effect based on the right of possession is asserted or the possessor has been deprived of it, compensation for the damage, removal of disturbance or damage caused by the infringement of the right of possession cannot be claimed in addition to the removal of interference or damage caused by the infringement of the right of possession, barring special circumstances.
Therefore, the plaintiff's claim for confirmation of possessory right of this case cannot be dismissed as it is unlawful without any need for further examination, and the judgment of the court of first instance is just, and the plaintiff's appeal is dismissed as it is without merit, and the costs of appeal are assessed against the plaintiff as the losing party. It is so decided as per Disposition by the court of first instance.
Judge Lee Jae-hun (Presiding Judge)