On the third ground for appeal

According to the reasoning of the judgment of the court of first instance as cited by the court below, 30 square meters and 7 square meters in Gwanak-gu in Seoul Special Metropolitan City ( Address 1 omitted) were owned by the plaintiff, and the new forest additional land substitution area No. 21 in February 1, 1975, which was incorporated into the new forest additional land substitution zone that was implemented by Seoul Special Metropolitan City, and was disposed of as 31.8 square meters in the location of the above rearrangement zone in accordance with the disposition of the designation of the land substitution, and the above 31.8 square meters in the above portion of the 31.8 square meters in the above land substitution. The above part of the judgment of the court below was constructed on the 13th square meters in the above land substitution, and the above part of the above building was occupied and used by the defendants, and the defendant's defense, i.e., the above building, which was owned by the defendant prior to the above disposition of land substitution, did not unfairly affect the plaintiff's above disposition of land substitution.

However, in full view of the purport of Articles 40 through 41, 56 through 60, and 61 through 62 of the Land Readjustment Project Act, if there is a disposition to designate a land as a land as a planned land substitution under Article 57 (1) of the same Act, the owner of the previous land shall be entitled to use and benefit from the land as designated, even if there is no change in ownership, but to directly request the owner, etc. of the buildings and other structures constructed by title on the land designated as the planned land substitution, and such buildings and other structures shall be interpreted to the effect that there is the right to use and benefit from the land as well as the right to use and benefit from the land in the situation of the building, etc. before the removal, etc. of the building in accordance with the legitimate procedure of the land readjustment project

If a person who was designated as a planned land substitution is interpreted to have directly filed a claim for removal of a building and other structures constructed by the title of the planned land substitution even before the land substitution project operator takes measures such as removal, etc. or before the land substitution becomes final, the person who owned the building and other structures above the planned land substitution may lose the opportunity to compensate for losses as prescribed by the Acts and subordinate statutes. Therefore, in a case where the person who installed the building and other structures on the planned land substitution without title in the planned land substitution infringes on the right to use and benefit from the land, the right to request removal of the building and other structures which exist without title after the planned land substitution becomes final and conclusive shall be recognized. However, it is reasonable to interpret that the right to claim removal of the building and other structures constructed by the title on the land can not be directly executed before the scheduled land substitution was finalized (see Supreme Court Decision 2005Da13849, Dec. 28, 1965).

Therefore, the judgment of the court below that the person who was designated as a planned land substitution may seek a direct removal, citing only the reasons that he had the right to use and benefit from the land before the disposition of the planned land substitution was made, as seen above, is erroneous in the misapprehension of the legal principles of the right to use and benefit from the land planned as planned land substitution, which affected the conclusion of the judgment by failing to examine whether the building was constructed by the party with the right to use and benefit from the land planned as planned land substitution, and thus, it is reasonable to discuss the controversy over this point. Therefore, the judgment of the court below should not be reversed without examining other arguments.

Therefore, the judgment of the court below shall be reversed and the case shall be remanded to the collegiate division of the Seoul Civil Procedure District Court, which is the court below, and the party members against the above purport of the judgment shall be repealed by the Supreme Court Decision 71Da339.340 delivered on April 28, 1971. It is so decided as per Disposition by the assent of all participating Justices except the dissenting opinions as follows.

The dissenting opinions of the Supreme Court judges of the Dong, Dong-gu, Dong-jin, Dong-Jin-Jin-Jin-Jin-Jin-Jin-Jin-Jin-Jin, Dong-Jin-Jin-Jin

According to Article 57 (1) of the Land Readjustment Act, the previous landowner, who has been subjected to the disposition of the designation of the land to be reserved, shall not use or benefit from the previous land instead of exercising the same rights as the previous land in relation to the land to be reserved from the effective date of the designation of the land to be reserved (where an implementer separately determines the commencement date of use or benefit from the land pursuant to Article 57 (2) of the same Act, such date) until the date of the public notice of the disposition of replotting, until the date of the disposition of replotting, and pursuant to Article 57 (3) of the same Act, the previous landowner, right holder, etc. shall not use or benefit from the land during the period stipulated in paragraph (1) of the same Article, and shall not interfere with the exercise of rights by the person who has been subjected to the disposition of the designation of the land to be reserved, and the previous landowner, previous landowner, right holder, etc. of the land to use

According to the above provisions of the Act, the previous landowner’s right to use and benefit from the reserved land for replotting is identical with the previous landowner’s right to use and benefit from the land, which is the content of ownership in the previous land, and the previous landowner may exercise the right to use and benefit from the land as to the reserved land for replotting, while the previous landowner may lose the right to use and benefit from the previous land. The above right to use and benefit from the reserved land for replotting is generated by the disposition of the public law and can be seen as a right under the public law in this regard. However, the above right to use and benefit from the land is a right to use and benefit from the land for the private purpose, and the private person is not different from the general private right, and therefore, the above provision of the Act cannot be a ground for passive interpretation. Rather, it can be interpreted that the above legal doctrine simply stipulates

In this regard, as long as the right to use and benefit from the previous land is the ownership of the right to the land and the right to use and benefit from the land has the same contents as that of the right to use and benefit from the said land, it is interpreted that the previous owner or the right holder of the right to use and benefit from the land, which is identical to the right to use and benefit from the above land, may exercise the right of the same nature as the right to claim the ownership based on the ownership. Therefore, in cases where the previous owner or the right holder of the right to use and benefit from the land to use and benefit from the land to be reserved under Article 57(3) of the Act owns a building, etc. on the land to be reserved and interferes with the right to use and benefit from the land to be reserved, all of them are illegal occupants, and the previous owner of the land, who has received the notice of the designation of the land to be reserved, may seek removal of the building and the surrender of the land, regardless of whether the building had already existed at the time of the designation of the land to be reserved or not.

In accordance with Article 40 of the same Act, if it is necessary to designate a land as a land substitution, the land substitution project implementer may remove or remove obstacles, such as buildings, etc., within the land substitution site, but it can be said that the implementer has the authority to do so. Unless there are other special provisions, it cannot be said that the previous landowner, who was subject to the disposition of the land substitution site, does not have the same right as the previous right to use or profit from the land substitution site, and does not interfere with the right to seek the removal of the land substitution site by exercising the right to use or profit from the land substitution site. According to Article 41 of the same Act, in case where there is a person who suffered losses due to the above transfer or removal of the land substitution site, the implementer is entitled to compensate for such losses, but the above transfer or removal belongs to the authority of the implementer, and the implementer does not have the duty to compensate for such losses, and in case where the implementer designates the land substitution site without such transfer or removal, it cannot be said that the previous landowner does not have the right to use or profit from the land substitution site.

Therefore, the plaintiff, the owner of the previous land, which was subject to the disposition of the designation of the land to be reserved in this case, may seek an explanation of the part of the land in possession and removal of the building on the land to be reserved, even if the building had existed since the entry into force of the disposition of the land to be reserved in substitution, on the ground that he had no title to the land to be reserved in connection with the plaintiff such as the agreement on the use and profit of the land to be reserved in substitution, and that there was no title to the land to be reserved in the previous land. Therefore, the original judgment to this effect is justified.

Justices Kim Jong-joon (Presiding Justice) since it is during an overseas business trip, the non-signing judge of the Supreme Court of Korea (Presiding Justice) who is unable to sign a signature, since it is during an overseas business trip, the non-signing judge of the Supreme Court of Korea (Presiding Justice).