[토지인도등청구사건][고집1980민(1),445]
The concept of possession under the Civil Act
Since possession refers to the objective relationship that shows that the article belongs to a person's factual control under the concept of society, it can be said that there is a view to excluding the interference of those people. Thus, it cannot be said that the defendant uses the land as a passage to the public together with the neighboring residents and the general public, the land is below the defendant's possession.
Article 192 of the Civil Act
Supreme Court Decision 73Da923 delivered on July 16, 1974 (Article 192(11) of the Civil Act); Article 750 of the Civil Act in the Official Gazette (Article 192 of the Civil Act); Article 299 of the Civil Act; Article 497 of the Court Gazette
Plaintiff
Defendant 1 and six others
Yeongdeungpo Branch Court of Seoul District Court of the first instance (79Gahap883)
1. Of the original judgment, the part against the Defendants ordering the payment of the amount of money in proportion to KRW 21,00 per month from September 1, 1979 to the delivery date shall be delivered to the Plaintiff from among the real estate indicated in the attached list (7) to KRW 29,000, and each of the above part shall be revoked and the Plaintiff’s claim as to the above part shall be dismissed.
2. The defendants' remaining appeals are dismissed, respectively.
3. The costs of the lawsuit shall be borne by the Defendants in both the first and second instances.
Defendant 1 shall deliver to the Plaintiff one square meter in the attached list (A) of the real estate listed in the attached list (1) of KRW 39,70 and KRW 1,400 per month from September 1, 1979 to the delivery date; Defendant 2 shall deliver six square meters in the above list of the real estate; KRW 238,200 and KRW 8,40 per month from September 1, 1979 to the delivery date; KRW 95,800 per month from KRW 97; KRW 97,00 per month from KRW 97; KRW 97,00,000 per month from KRW 19,60 per month from September 1, 197 to KRW 97; and KRW 9,000 per month from KRW 19,60 per month from KRW 97; and KRW 97,000 per month from KRW 9,70 per month from KRW 19,70 per month from delivery date.
The original judgment shall be revoked.
The plaintiff's claim is dismissed.
All the costs of lawsuit shall be borne by the plaintiff in the first and second instances.
In full view of each entry in Gap evidence Nos. 1-1-6 (each copy of the register) and the result of the on-site verification by the court below, the real estate listed in the separate sheet Nos. 1-6 (1) through (6) is owned by the plaintiff, and the plaintiff continues to own the real estate after June 11, 1969, and it is now owned by the plaintiff. The defendants can recognize the facts that the plaintiff has occupied and used each of the above parts of the claim stated in the separate sheet Nos. 1-6 (1) through (6) prior to the acquisition of ownership, and there is no counter-proof.
Therefore, barring any special circumstances, in this case where the defendants did not prove that they had the right to use the part of the above real estate or have the right to continue to possess it in the future, the defendants have the duty to deliver each part of the above real estate to the plaintiff. In addition, the profits acquired by the defendants' possession were conducted without any legal ground, and thereby the plaintiff has the duty to return the same amount of damages to the plaintiff. Accordingly, as to the plaintiff's assertion that the plaintiff is entitled, the defendants cannot construct a building on the ground as the form of the land although the plaintiff received the part of the defendant's possession. Therefore, even if the construction permission cannot be granted, even if the plaintiff's assertion that the plaintiff's claim for delivery of the land constitutes abuse of the rights, it cannot be deemed that the plaintiff's claim for delivery of the land constitutes abuse of the rights, and there is no other evidence to prove that the plaintiff's claim cannot be accepted as the exercise of rights against the social nature of the rights. Thus, the above defense is groundless.
In addition to the above-mentioned real estate, the plaintiff's attorney asserts that the defendants jointly possess 29 square meters of the portion indicated in the annexed sheet (j) of the real estate owned by the plaintiff in addition to the above-mentioned real estate, and sought the return of profits from possession as well as delivery. Thus, the so-called "the possession" refers to an objective relationship that shows that the goods belong to a person's factual control in light of social norms, so it is exempted from the interference of the defendant (refer to Supreme Court Decision 73Da923 delivered on July 16, 1974). In full view of the above-mentioned verification result and the whole purport of oral argument as a result of the appraisal, the above-mentioned annexed sheet (j) portion 29 square meters is a mountain way where the plaintiff has contributed to each other, and it can be acknowledged that the residents or the general public of other houses constructed adjacent thereto have used it as a passage prior to the acquisition of ownership, and there is no other evidence to acknowledge that only the defendants exclusively use it as a passage to the public.
Furthermore, with respect to the amount of profit to be returned by the Defendants, unless there are other special circumstances, the above profits amount to the land possessed by the Defendants. According to the appraiser 2 of the court below, the amount of rent per annum of 1974, annual interest rate of 4,500, annual interest rate of 1976, annual interest rate of 6,000, annual interest rate of 12,000, annual interest rate of 1978, annual interest rate of 10, 1979, annual interest rate of 1,400, and annual interest rate of 1,400, annual interest rate of 1,400, and annual interest rate of 1,500, annual interest rate of 1,500, annual interest rate of 1,500, annual interest rate of 1,500, and there is no reflect, Defendant 2, 30,500 won, annual interest rate of 5,000 won, annual interest rate of 1,507.
Therefore, the plaintiff's claim of this case shall be delivered to the defendants as shown in the separate sheet (1) through (6) of this case, and shall be accepted within the scope of the claim for payment of each money of the above recognition, and the remainder of the claim (as stated in the separate sheet (7) of this case and the claim for the return of unjust enrichment equivalent to the rent therefor) shall be dismissed. Since the judgment of the court below has accepted the plaintiff's claim with different conclusions, it is unfair, and the plaintiff's appeal has some grounds, and the plaintiff's claim against the defendants is revoked, and the plaintiff's claim against the defendants is dismissed. The plaintiff's remaining appeal against the defendants exceeding the above scope shall be dismissed, and the costs of the lawsuit shall be borne by the defendants under Articles 89, 92, 93 and 96 of the Civil Procedure Act, and it is so decided as per Disposition.
Judges Kim Sang-won (Presiding Judge) Lee Jong-young