Attorney Lee Dong-soo, Counsel for the defendant-appellant

Attorney Cho Jae-young et al., Counsel for the defendant-appellant

1. An owner may demand the return of an article from the person in possession of that article: Provided, That if the possessor has the right to possess the article, he may refuse to return it (Article 213 of the Civil Act), and the owner may demand the person who disturbs the ownership to remove the disturbance, and may demand the person who might interfere with the ownership to prevent it or to provide a security for compensation for damages (Article 214 of the Civil Act); and

However, unlike the previous precedents, the Supreme Court en banc Decision 2016Da264556 Decided January 24, 2019 determined that, in cases where a land owner provided the land owned for the purpose of general public, such as road and site laid underground, if the owner can be deemed to waive exclusive and exclusive rights to use and benefit from the land, the land owner may not request the transfer of the land or the removal of the facilities against another person (including not only the private person but also the State and local governments) even if he/she occupies and uses the land, barring special circumstances. In such cases, whether the owner may be deemed to waive exclusive and exclusive rights to use and benefit from the land should comprehensively consider various circumstances such as the period of holding the land owner's ownership, the details and scale of the provision of the land, the owner's interest or benefit from the provision of the land, the location and form of the relevant part of the land, the relationship with neighboring land, and the surrounding environment, and the exclusive and exclusive rights to use the land owner's ownership should be determined by comparing the ownership of the land owner and the exclusive rights (see Supreme Court en banc Decision 2616Da616.

2. The Plaintiff filed the instant lawsuit claiming the removal of packaging roads installed on the said road portion and the delivery of land on the ground that the Defendant, a local government, uses the instant road portion as a traffic route without a title, as the owner of the Nam-si ( Address 1 omitted), Nam-si (hereinafter referred to as “instant land”).

For the following reasons, the lower court rejected the Plaintiff’s claim on the ground that the Plaintiff renounced the exclusive, exclusive, and beneficial rights to the instant road portion. The Plaintiff provided part of the instant land to the Nonparty as a road and received KRW 3 million therefrom.

After that, at the request of the Nonparty and the neighboring residents of the instant land, the Defendant opened a cement and asphalt road on the part of the neighboring land, including the instant road portion. There is no big difference between the compensation expected to be paid when the Plaintiff acquired the instant road portion through consultation. Of the Defendant’s packing roads, the instant road portion and the adjacent parts thereof were the only passage through a large vehicle on the neighboring land in which construction works are underway or scheduled to be conducted. If the instant road portion is excluded from the packing roads set up by the Defendant, the ordinary vehicle cannot pass. The Plaintiff filed the instant lawsuit only on December 30, 2015, when ten years have passed since the Defendant opened the packing roads.

3. However, the judgment of the court below cannot be accepted for the following reasons.

A. According to the reasoning of the lower judgment and the record, the following circumstances are revealed.

(1) The Nonparty is the owner of the land located immediately adjacent to the instant land, Namyang-si ( Address 2 omitted).

The Plaintiff, without specifying a specific area to the Nonparty, agreed to provide part of the instant land as a road, and the Nonparty provided 3 million won to the Plaintiff in return for that agreement. Thereafter, the Defendant opened a packaging road on the adjacent land, including the instant road portion.

(2) On the instant road section, the upper and lower roads are connected, and both roads are all closed. While it is difficult to pass a general vehicle on the connecting side if the instant road is excluded from the packaging installed by the Defendant, the neighboring land owner, etc. may enter his/her own land through a bypass.

(3) At the time of the Defendant’s performance of road packing construction, construction works in neighboring areas were underway or scheduled, and the instant road portion and its adjacent parts were used as a passage through which large vehicles can pass from the said construction site.

B. Examining these circumstances in light of the aforementioned legal principles, it is difficult to readily conclude that the Plaintiff renounced the exclusive and exclusive right to use and benefit from the road portion of this case, and even if not, there is room to deem that the principle of change of circumstances is applied, thereby allowing the Plaintiff to exercise exclusive and exclusive right to use and benefit from the road portion. The reasons are as follows.

(1) The Plaintiff is the Nonparty, who is the owner of neighboring land, and the Plaintiff is also the Nonparty who paid money to the Plaintiff in return for the use of the road section. It is reasonable to deem that the Plaintiff consented to the use of the road section of this case on behalf of the Nonparty, not for the general public. Therefore, the lower court should have sufficiently examined the relationship between the Plaintiff and the Nonparty, the Nonparty, and what circumstances the two persons agreed to, and how the money was the nature of the money. After having sufficiently deliberated on the relationship between the Plaintiff and the Nonparty, the lower court should have presented the grounds for determining that the Plaintiff permitted the use of the land through the transaction with the Nonparty, even if

(2) In light of the location and form of the instant road section, it is difficult to readily conclude that many unspecified persons, other than the Nonparty and other specific persons, have used the said road section. In contrast to the benefits accruing from the use of the instant road section, the degree of infringement of the Plaintiff’s property right is insignificant, compared to the degree of convenience for the passage of specific persons, including the Nonparty.

(3) The lower court recognized that the instant road section was used as a passage through which large-scale vehicles can pass through the surrounding construction site in which the instant road section was in progress. The lower court seems to have emphasized that the instant road section was used for public purposes. However, the lower court did not have any deliberation on the nature of the instant neighboring construction works and who is the subject thereof. Furthermore, since the Plaintiff asserted changes in circumstances, the lower court did not have to also examine whether the instant road section is still necessary as a passage after completion of the construction work, whether the instant road portion is still needed as a passage, and whether it falls under the case where the land use status change or the previous use status cannot be maintained any longer.

4. The lower court rejected all of the Plaintiff’s assertion without thoroughly examining whether the Plaintiff renounced the exclusive, exclusive, and beneficial rights to the instant road portion and subsequently there was any change in the circumstances. The lower court erred by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or by misapprehending the legal doctrine on the restriction on the exercise of exclusive, exclusive, and beneficial rights.

5. The plaintiff's appeal is with merit, and the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices

Justices Kim Jae-hyung

Justices Ansan-chul

Justices Lee Dong-gu