2. The costs of appeal shall be borne by the Plaintiff.

In the first instance court, the Plaintiff filed an appeal against the Defendant for the removal of steel systems, such as steel pipes, installed on the ground of 133 square meters of road ( Address 1 omitted), ( Address 2 omitted), large 36 square meters of land (hereinafter “instant land”). The first instance court dismissed all of the Plaintiff’s claims. The Plaintiff filed an appeal only for the claim for removal of steel systems, such as steel systems, etc., and reduced the purport of the claim to remove only steel systems, such as steel pipes, installed on the instant land, among the above removal claims, while modifying the purport of the claim in the first instance court. As such, the subject of the judgment of this court is limited to the said reduced claim.

2. Basic facts

A. The South Sea wave License Co., Ltd. (hereinafter “Nam Sea wave License”) is the former owner of the land and the building portion listed in the separate sheet (hereinafter collectively including the above land and the building portion) and operates resort condominium business. While operating the instant containers, the instant land was used as the road and the parking lot on the entrance of the instant containers.

B. On August 10, 2006, the non-party, who was an internal director of the Namhae Ocean, completed the registration of ownership transfer for the instant land under his name on the grounds of sale on February 12, 1990, and completed the registration of ownership transfer for the Defendant, who is his own son on the same day, on the same day.

C. On June 9, 2011, the Plaintiff purchased most of the instant containers owned by Changwon District Court (Seoul District Court Branch Branch Decision 2010Ma2977) in the auction procedure for real estate rental, and currently operates the instant containers.

D. From July 201, the Plaintiff purchased the instant container, the Defendant installed steel structure, such as steel pipe, etc. (hereinafter “the instant steel structure”) and block structure on the boundary of the instant land from July 201, 201, and then reduced the height of the instant steel structure by the first half around February 2014.

[Ground of recognition] Facts without dispute, Gap's entry in Gap's 3, 5, 6, and 8 (including each number; hereinafter the same shall apply) and the purport of the whole pleadings

3. The assertion and judgment

A. The plaintiff's assertion

1) The primary argument

① The Republic of Korea, the former owner of the instant Condo, owned the servitude for passing over the instant land; however, the Plaintiff succeeded to and acquired the instant servitude by purchasing the instant Condo; ② The Plaintiff also has the right to passing over the instant land because it is difficult for the Plaintiff to operate the instant Condo because the access of automobiles, such as buses, etc. necessary to operate the instant Condo without using the instant land, was considerably difficult; and the Defendant’s act of installing the instant steel structure was not only interfered with the Plaintiff’s above rights; ③ the Defendant’s act of installing the instant steel structure did not have any profit to the Defendant, but also caused enormous business damage to the Plaintiff; and the Plaintiff’s act of installing the instant steel structure constitutes abuse of rights when considering the fact that the Defendant refused to purchase the instant land. Accordingly, the Defendant is obligated to remove the instant steel structure to the Plaintiff.

2) Preliminary assertion

Even if both claims for removal of the instant steel structure are not accepted, in particular, since the act of installing steel structure on the ground of 36 square meters wide and 36 square meters wide among the instant land constitutes a so-called typical “almbling”, the Defendant is obligated to remove the relevant ground steel structure to the Plaintiff.

[The plaintiff's primary assertion and conjunctive assertion are not compatible with the same factual basis. The plaintiff's primary assertion include the abuse of rights due to the so-called "almbling", and the plaintiff's primary assertion are considered to include the abuse of rights. In fact, in the determination of the main assertion, the determination of the act of installing steel structure on the ground of 36 m2 m2 of the land in this case is made, so the conjunctive assertion is not judged separately.

B. Defendant’s assertion

The plaintiff does not have the servitude and right to passage over the land of this case, and the defendant's act of installing the steel structure of this case is the legitimate exercise of the landowner of this case.

C. Determination

1) Determination as to whether to acquire succession to easements

The plaintiff's assertion of succession to the Servitude based on the premise of the above is without merit, as seen earlier, even though it is recognized that the South Maritime Republic of Korea used the instant land while operating the instant contact, there is no evidence to acknowledge the fact that the South Maritime Republic of Korea has acquired decentralization over the instant land.

2) Determination as to whether a right to passage over surrounding land has been established

Since the right of passage over surrounding land under Article 219 of the Civil Act is recognized only when there is no passage necessary for the use of the land between the land owned and the public road, the right of passage over surrounding land cannot be recognized only because it is more convenient than the use of the passage (see, e.g., Supreme Court Decisions 82Da102, Jun. 22, 1982; 95Da108, 95Da1095, Jun. 13, 1995).

According to the statements or images of evidence Nos. 4, 7, 8, 9, and 13, the land of this case was used as the road and parking lot on the entrance side of the instant container before the Defendant installs the steel structure and block structure of this case. The Plaintiff was unable to use the land of this case as the road or parking lot due to the Defendant’s installation of the steel structure, etc., and the width of the road leading to the instant container is narrow due to the Defendant’s installation of the steel structure, etc., and some parking lots of the instant containers lost their functions.

Meanwhile, according to the statements or images of Gap evidence Nos. 4, 9, Eul evidence Nos. 1 and 2 and the results of the on-site inspection by the commissioned judge of the trial court, even if the plaintiff did not use the land of this case, the plaintiff can enter the road of this case on the road, and the vehicle (including a large-type vehicle) necessary for the plaintiff's business may pass along, etc., the plaintiff cannot be deemed to have no way to pass the surrounding land on the land of this case.

Therefore, the plaintiff's assertion of right to passage over surrounding land is without merit.

3) Determination as to abuse of rights

If the exercise of a right can be seen as an abuse of a right, the purpose of the exercise of the right is to give pain to the other party and to inflict damages on the other party, and there should be no benefit to the person who exercises the right, and objectively, the exercise of the right should be viewed as a violation of social order. Unless it does not fall under such cases, even if the loss of the other party is significantly high than the benefit that the exercise of the right gains, such circumstance alone does not constitute an abuse of right (see Supreme Court Decisions 97Da42823, Jun. 26, 1998; 2003Da1458, May 30, 2003, etc.).

According to the aforementioned evidence, the width of the access road leading to the instant contact road is narrow due to the Defendant’s act of installing the instant steel structure. Of the instant contact parking lot, approximately 10 parking spaces lose their functions, causing some inconvenience to the Plaintiff and the Plaintiff’s customers, and the overall view of the instant contact is somewhat damaged.

Meanwhile, the following circumstances, which can be seen by comprehensively considering the overall purport of arguments as a result of the on-site verification of Gap evidence Nos. 4, 9, 13, and 18, Eul evidence and Eul evidence Nos. 1 and 2, and the overall purport of the pleadings by the commissioned judge of the trial court, namely, even if the plaintiff and the plaintiff's customers do not use the land of this case, there is no particular problem with entering the container of this case on the road, and the container of this case has sufficient space for parking in other parking lots. Even if the steel structure of this case remains at the removal of the steel structure of this case, the plaintiff can not use the land of this case as a parking lot. The plaintiff can not be seen as having known that the land of this case had already been an object of auction at the time of acquiring the container of this case by auction. In light of the fact that the defendant's first half the height of the steel structure of this case at the trial did not cause any damage to the plaintiff's view that the purpose of installing the steel structure of this case does not cause for the plaintiff's use of this case without permission.

Therefore, the plaintiff's assertion of abuse of rights is without merit.

4. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and the judgment of the court of first instance is just, and the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.

[Attachment List omitted]

Judges Doh-type (Presiding Judge) Doh-ro