[토지손실보상금등][미간행]
[1] Requirements and method for determining whether the exercise of rights constitutes abuse of rights
[2] The case holding that removal of the ditch facilities and the request for its delivery constitutes an abuse of rights
[1] Article 2 (2) of the Civil Act / [2] Article 2 (2) of the Civil Act
[1] Supreme Court Decision 2003Da40422 decided Nov. 27, 2003 (Gong2004Sang, 17)
Plaintiff (Law Firm Squa, Attorneys Lee Jae-hoon et al., Counsel for the plaintiff-appellant)
Busan-si (Attorney Lee Young-young, Counsel for the defendant-appellant)
Seoul High Court Decision 2009Na26277 decided September 10, 2009
The appeal is dismissed. The costs of appeal are assessed against the plaintiff.
The grounds of appeal are examined.
If a subjective exercise of the right is to inflict pain and damage on the other party, and there is no benefit to the person who exercises the right, and if it can be objectively deemed that it violates social order, the exercise of the right is not allowed as an abuse of rights, and the subjective requirement that the exercise of the right is to inflict pain or damage on the other party can be confirmed by objective circumstances, which show that the exercise of the right holder's legitimate interest is an exercise of the right holder's right. Whether the exercise of the right constitutes an abuse of right should be determined by individual and specific cases (see Supreme Court Decision 2003Da40422, Nov. 27, 2003).
The main text of Article 26(3) of the Enforcement Rule of the Act on the Acquisition of Land, etc. for Public Works and the Compensation Therefor provides that “The appraisal of the adjacent land shall be conducted within 1/3 of the appraised value of the neighboring land”; furthermore, the following circumstances, i.e., the land lot number 400 square meters (hereinafter “instant land”) within Seocheon-gu, Seocheon-si, which may be known by the evidence submitted, has been used as a ditch installed on farmland since before 1966, and is currently used as a public sewerage system because only part of the land has been reconstructed, and the Plaintiff requested the purchase of the instant land on April 9, 204 to two appraisal institutions, including Korea Appraisal Board, which were difficult to use; while the Korea Appraisal Board, etc. requested the Plaintiff to assess the amount of compensation for the instant land for the removal of the instant land for 200 square meters in consideration of the fact that the present state of the instant land is a ditch, it shall not be deemed that the Defendant has made a request for the removal of each of the instant land within 20000th square meters.
The decision of the court below to the same purport is just, and there is no error of misapprehending the legal principles or failing to exhaust all necessary deliberations.
The Supreme Court precedents pointed out in the grounds of appeal are inappropriate to be invoked in this case as they differ from this case.
Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.
Justices Min Il-young (Presiding Justice)