1. In a case where the head of a Si/Gun does not implement an urban planning project without implementing the urban planning project by publicly announcing the land that is one of the urban planning facilities, and actually uses the neglected land as a road for the public use of the general public, if the owner of the land grants the right to passage without compensation to neighboring residents or the general public, or if it appears that he/she given exclusive and exclusive rights to use and benefit from such land, he/she shall be deemed to have given such land by himself/herself as a road. In addition, if he/she sells the land in accordance with the urban planning, the circumstance or scale of his/her ownership, the period of the sale of the land in installments in accordance with the urban planning plan, the location and nature of the land used as a road, the relationship with neighboring land, the surrounding environment, etc., and the degree of contribution to the remaining land sold after the completion of the urban planning project, it is difficult to readily conclude the remaining portion of the land to be used by the owner of the land as a site for use and benefit-making, including the remaining portion of the land to be designated.

2. Review of the reasoning of the lower judgment and the evidence duly admitted reveals the following facts.

A. On February 2, 1967, the Plaintiff purchased 366 square meters before Suwon-si E (hereinafter “the land before the instant subdivision”) and completed the registration of ownership transfer.

B. The land before the instant partition is in the shape of narrow and narrow width. On February 26, 1975, the urban planning was determined and publicly notified on the part of the land before the instant partition, which installed urban planning facilities (road) with a width of eight meters wide (hereinafter “instant public notice”). ① The land before the instant partition was divided on June 30, 1983, and ② the land was subdivided into E on April 24, 1984 into 275 and 337 square meters before H. < Amended by Act No. 3775, Apr. 24, 1984; Act No. 3750, Oct. 2, 1984; Act No. 10650, Oct. 1, 207; Act No. 33772, Oct. 3, 1984; Act No. 3444, Jun. 30, 196>

D. The land I and J (hereinafter referred to as “instant land”) was part of the land determined as urban planning facilities by the instant public notice, and was actually used as a road at the time of subdivision. On October 18, 1984, the land category was changed to a road upon the Plaintiff’s application, and was combined into 116 square meters on April 12, 2013. E. On May 3, 1984, the Plaintiff newly constructed a house (hereinafter referred to as “instant housing site”) on G land (hereinafter referred to as “instant housing site”) with a construction permit granted from the competent administrative agency on May 3, 1984, and received a completion inspection on November 1, 1984.

F. Even after the instant public notice, the Plaintiff continued to own the instant land and F and G land adjacent thereto for at least 40 years, and sold the instant land to 0 on December 31, 2012.

3. Examining the above facts in light of the legal principles as seen earlier, the following is determined.

From February 2, 1967, the Plaintiff owned adjacent land including the instant land. As the instant land was determined as an urban planning facility (road) by the instant public notice on February 26, 1975, and was scheduled to be constructed under the relevant Acts and subordinate statutes, the instant land portion was limited to the use and profit-making, such as construction of a new building, etc., and thus, it was not properly used.

As a result, the Plaintiff inevitably divided the instant land into a road line according to the instant public notice, and changed its land category into a road, except for this, constructed a house only on the instant housing site, and during the process leading up to that, it seems that the instant land was actually used as a road by neighboring residents.

In addition, even if the land of this case was not determined as an urban planning facility by the public notice of this case, it is difficult to readily conclude that the Plaintiff had no choice but to use the land of this case, or divide the land before subdivision, by providing it as the above location or shape passage, or by dividing the land before subdivision, even if it was not determined as an urban planning facility by the public notice of this case.

In full view of these circumstances, the Plaintiff cannot be deemed to have provided the instant land, which the Plaintiff owned, as a road without compensation, or renounced the right to use and benefit from the said land, solely on the grounds that the Plaintiff voluntarily filed an application for partition and land category change of the instant land and that the utility of the instant housing site and F land adjacent to the instant land was increased.

4. Nevertheless, the lower court determined otherwise solely on the grounds of the circumstances contrary to its ruling. In so doing, it erred by misapprehending the legal doctrine on the waiver of the right to use and benefit from the land, the use and benefit of which is limited by urban planning, thereby adversely affecting the conclusion of the judgment. The ground of appeal

5. Therefore, without examining the remaining grounds of appeal, we reverse the judgment below, and remand the case to the court below 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 Lee In-bok

Justices Kim In-bok, Counsel for the defendant

Justices Kim Gin-young