[양수금][미간행]
[1] Where private land is actually used as a road, the standard for determining whether a landowner grants a free right of passage or waives a right of use
[2] The case holding that the owner of the private land cannot be deemed to have granted the right of free passage to the general public or given the right of free use on the ground that the State, etc. did not legally acquire the property for public use, or did not occupy the land with the consent of the owner, and the owner could not have enjoyed the benefit of securing and increasing the utility value of the adjacent land due to the use of the land for the road
[3] The standard for determining whether a contract to transfer claims is concluded mainly for the purpose of enabling a contract to proceed with litigation
[4] The case reversing the judgment of the court below that held that Article 7 of the Trust Act is null and void by analogy on the ground that the transfer or acquisition of the right to claim for return of unjust enrichment and the transfer or acquisition of the right to claim for return
[1] Article 741 of the Civil Act / [2] Article 211 of the Civil Act / [3] Article 7 of the Trust Act, Article 449 of the Civil Act / [4] Article 7 of the Trust Act, Article 449 of the Civil Act
[1] Supreme Court Decision 98Da59262 delivered on May 12, 2000 (Gong2000Ha, 1383), Supreme Court Decision 2005Da21517 delivered on August 25, 2005 (Gong2005Ha, 1563), Supreme Court Decision 2005Da31736 Delivered on May 12, 2006 (Gong2006Sang, 1030) / [3] Supreme Court Decision 2003Da20909, 20916 delivered on March 25, 2004 (Gong2004Sang, 693)
Plaintiff (Law Firm Multilul, Attorneys Lee Ho-ho et al., Counsel for the plaintiff-appellant)
Republic of Korea and one other (Attorney Jeon Jae-ho, Counsel for the plaintiff-appellant)
Jeonju District Court Decision 2005Na7095 decided May 12, 2006
The judgment of the court below is reversed, and the case is remanded to the Jeonju District Court Panel Division.
1. The lower court determined that, in full view of the following circumstances acknowledged by the evidence of its adopted evidence, all of the instant land was divided into each sub-section in around 1921, before the Republic of Korea was established, and the land category was changed as at the time of division, and there was no change in the size until now since the division, and as to each of the instant land which had been already formed and used as national highways prior to the establishment of the Republic of Korea, the Defendant Republic of Korea provided for the passage of residents and vehicles with a over-to-land over-the-land. Since each of the instant land was constructed and the Republic of Korea occupied and used each of the instant land for more than 80 years, and the Defendants occupied and used it as a road, the lower court offered the exclusive right to use or benefit from each of the instant land as well as the Plaintiff’s exclusive right to use or benefit from each of the instant land to each of the instant land, the Plaintiff did not have any exclusive right to use or benefit from each of the instant land to each of the instant land.
However, it is difficult to accept such judgment of the court below for the following reasons.
In a case where a certain private land is naturally occurring or is classified into a proposed road site and actually used as a public road for the traffic of the general public, in interpreting that the owner of the land grants a neighboring resident or the general public the right to free access to the land by providing the land as a road or waives exclusive and exclusive rights to use and benefit from the land, it shall be determined by comprehensively taking into account the following: (a) the circumstance or holding period of the ownership of the land; (b) the details and scale of the sale of the remaining land in installments; (c) the location and nature of the land to be used as the road; (d) the relationship with the neighboring land; and (e) the surrounding environment; and (e) the extent that the land contributed to the effective use and benefit of the remaining land partitioned and sold (see Supreme Court Decision 2005Da31736, May 12, 2006, etc.).
In light of the above legal principles and the records, each of the lands of this case was divided from each of the lots of lots by the Department of Shipbuilding on 1921, prior to the establishment of the Republic of Korea, and the category of neighboring lands was changed to a road, the construction of a road was commenced for use by the public. At that time or thereafter, there were no data on the circumstances, such as the shipbuilding General or the Defendants were taking lawful procedures for acquisition of property for public use or occupying each of the lands of this case with the owner’s approval for use, and there were no circumstances such as that the owner created a housing site in the vicinity of each of the lands of this case or obtained benefits to secure and increase the utility value of the adjoining lands due to the use of each of the lands of this case as a road. Thus, even according to the circumstances cited by the court below in the above factual basis, even if the previous owners of each of the lands of this case directly provided each of the lands of this case as a road, it cannot be deemed that the previous owners were granted the right of passage to neighboring residents or the general public for exclusive use rights.
Nevertheless, the original court rendered a judgment that the deceased non-party 1, who is the previous owner of each of the lands of this case, renounced the right to use and benefit from each of the lands of this case, and that the plaintiff who purchased each of the lands of this case from the non-party 3 who succeeded to the deceased non-party 1's properties in succession, also could not exercise the right to use and benefit from the land of this case as long as he has accepted the restriction on use and benefit or acquired it with the knowledge of the circumstances. The court below erred by misapprehending the legal principles on the waiver of the owner's right to use and benefit from the land of this case,
2. In addition, the lower court determined that, in light of the following: (a) the Plaintiff failed to submit the data on the payment of the purchase price of each of the instant lands; (b) the purchase of each of the instant lands, even though being used as a road for 80 years, could be achieved only by filing the instant lawsuit against the Defendants; (c) Nonparty 3’s right to claim restitution of unjust enrichment against the Defendants; and (d) immediately after Nonparty 3 transferred the Plaintiff’s right to claim restitution of unjust enrichment to the Defendants and notified the Defendant, the Plaintiff filed the instant lawsuit; and (e) the Plaintiff purchased the land used as a road from around 2003 to the State or local governments with the right to claim restitution of unjust enrichment equivalent to the rent of the previous owner; and (e) the Plaintiff received the right to claim restitution of unjust enrichment from each of the instant lands, and thus, Article 7 of the Trust Act is null and void by analogy.
However, this decision of the court below is not acceptable for the following reasons.
In a case where the assignment of a claim, etc. mainly takes place with the intention of having the assignment of claim, Article 7 of the Trust Act shall be deemed null and void, even if the assignment of claim does not fall under a trust under the Trust Act by analogy. Whether it is the principal purpose of litigation shall be determined in light of all the circumstances, including the course and method of concluding the assignment of claim, interval between the transfer contract and the filing of the lawsuit, and the relationship between the transferor and the transferee (see Supreme Court Decision 2003Da20909, 20916, Mar. 25, 2004, etc.).
In light of the above legal principles and records, it is evident that Nonparty 3 transferred the right to claim restitution of unjust enrichment due to the possession and use of each land of this case to the Plaintiff and notified the Defendants thereof on May 3, 2004, and immediately thereafter, the Plaintiff filed the lawsuit of this case on June 3, 2004. However, on the other hand, the Plaintiff purchased each land of this case from Nonparty 3 on May 9, 2003 and completed the registration of transfer of ownership on July 15 of the same year from the above point of time, the lawsuit of this case was filed one year after the above point of time, so it cannot be deemed that the interval is extremely short. The other circumstances cited by the court below are not submitted, or that the purpose of the claim for restitution of unjust enrichment is only achieved by filing a lawsuit, or that the Plaintiff purchased multiple similar litigations other than the land used as the road of this case, and it cannot be deemed that the Plaintiff transferred the right to claim restitution of unjust enrichment to the Plaintiff as the purpose of the sale and purchase and transfer of the land of this case.
Nevertheless, the court below held that the transfer or acquisition of each of the lands of this case between Nonparty 3 and the Plaintiff is null and void by analogy of Article 7 of the Trust Act, on the grounds as stated in its reasoning. The court below erred by misapprehending the legal principles on the trust in lawsuit or by misunderstanding facts against the rules of evidence, and such illegality affected the judgment.
3. 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 Kim Ji-hyung (Presiding Justice)