[공사방해배제(본소)·토지인도(반소)][집16(1)민,044]
Cases of incomplete hearing on abuse of rights
In the event that a tourist hotel and its capacity were built and various structures were installed on the land in exchange for another land by the Plaintiff from a person who was deprived of the disused State-owned railroad site, in which the Plaintiff exchanged with another land, and the Defendants knew of such circumstances, and subsequently revoked the above land on the ground that the Defendants had a right to tobacco cultivated in the past, and the Plaintiff acquired the ownership, if the Plaintiff acquired the ownership, it was enormous compared to the damages that the Defendants suffered by the Plaintiff due to partial removal, etc. of the hotel's main office to deliver the land, and if the Defendants did not claim for the removal of the above building and its structure, and only the delivery of the land constitutes an abuse of rights.
Article 2 of the Civil Act
Plaintiff (Counterclaim Defendant)
Defendant Counterclaim Plaintiff and one other
Gwangju High Court Decision 67Na109, 110 delivered on October 11, 1967
The original judgment is reversed, and the case is remanded to the Gwangju High Court.
Judgment on the grounds of appeal by the Plaintiff (Counterclaim Defendant)
According to the reasoning of the first instance judgment cited by the original judgment, Defendant 2 (Counterclaim Plaintiff) purchased 14 dyp field 14 dypyp 17 November 14, 1966, from the country the owner of the land in which he purchased dyp field 14 dyp field from November 17, 1966, and completed the registration of transfer. The Plaintiff (Counterclaim Defendant) has a duty to return it to the Defendants, and the Plaintiff is obligated to return it to the Defendants. However, the Plaintiff asserted that the request for the delivery of this case by the Defendants was an abuse of rights, but rejected this for the following reasons.
In other words, the dry field of this case 14 square meters and 23 square meters of 167 square meters belong to the site of the Plaintiff’s hotel. The remaining parts are the site of the hotel’s capacity and other facilities. The amount equivalent to KRW 32,539,200 with the construction cost of the hotel’s capacity is the amount equivalent to KRW 1,50,000 with the construction cost of the hotel’s capacity. There are several structures by investing a considerable amount in the garden and the above site, and the price of each land owned by the Defendants is less than KRW 200,000 and the Plaintiff’s delivery of each land should remove part of the hotel’s capacity and other structures. The damages suffered by the Plaintiff are enormous damages and fertilizers due to the Defendants’ failure to exercise their ownership to the land, but the Defendants did not seek an abuse of rights against the Plaintiff or the Defendants’ removal of the above land, but did not seek an abuse of rights.
However, according to the purport of pleading by the parties in the records, the land in this case was originally put into use as a state-owned railroad site, and the plaintiff constructed a tourist hotel in exchange for the above flag conference and its own land and each land on the original land. The defendants, despite being aware of such circumstances, negotiate with the authorities for the reason that they had the power to cultivate the land in the past, can cancel the contract for the above flag conference, and prepare the fact that the defendants purchased the ownership, and the defendants purchased the land at a lower price than 200,000 won. Since the present market price of the land is less than 200,000,000 won, it can be seen that the above facts were established at the original judgment and the above facts were examined. In addition, the plaintiff did not remove the building suspicion structure on the land in this case, and the plaintiff did not request the removal of the building or the building site in this case, and the defendants did not request the removal of the abuse of rights, and the court below did not request the defendants' use of rights, but did not request the defendants' use of rights.
It is so decided as per Disposition by the assent of all participating judges.
Justices of the Supreme Court Dog-gu (Presiding Judge) Dog-Jak and Mag-gu Mag-gu