[토지인도등][공2010상,639]
[1] Requirements for exercising rights to constitute abuse of rights
[2] The case holding that a person who acquired land through auction does not constitute an abuse of rights to seek removal of the above ground buildings and delivery of the above land
[1] For the purpose of exercising the right to be an abuse of the right, a subjective purpose of exercising the right is to inflict pain and damage on the other party, and there is no benefit to the person who exercises the right, and the exercise of the right should be objectively deemed to be in violation of social order. Unless it falls under such a case, even if the loss of the other party is significantly larger than the profit that the exercise of the right has gained by the exercise of the right, such circumstance alone does not constitute abuse of the right.
[2] In a case where a person who acquired land through auction seeks removal of a building and delivery of the land, the case holding that it does not constitute abuse of rights in light of the fact that although the owner of the building appears to have been aware of the possibility of removal at the time of acquiring the right to the building, it is difficult to deem that the claim for removal of the building has no interest in the exercise of the right holder or to cause damage to the other party on account of the fact that there is a real value of investment in the land, and that it is difficult to view that it does not constitute abuse of rights.
[1] Article 2 (2) of the Civil Act / [2] Article 2 (2) of the Civil Act
[1] Supreme Court Decision 2002Da22083, 22090 decided Sep. 4, 2002 (Gong2002Ha, 2333), Supreme Court Decision 2002Da62319, 62326 decided Feb. 14, 2003 (Gong2003Sang, 800), Supreme Court Decision 2008Da67651, 67668 decided Feb. 12, 2009
Plaintiff (Law Firm Lee & Lee & Lee, Attorneys Lee Sang-hoon et al., Counsel for plaintiff-appellant)
Defendant Co., Ltd. (Law Firm Dakel, Attorneys Choi Ji-dam et al., Counsel for the defendant-appellant)
Seoul High Court Decision 2008Na80496 decided June 25, 2009
The part of the lower judgment against the Plaintiff is reversed, and that part of the case is remanded to the Seoul High Court.
The grounds of appeal are examined.
In order for the exercise of right to be an abuse of right, a subjective purpose of the exercise of right must be to inflict pain and damage on the other party, and there should be no benefit to the person who exercises the right. In an objective view, the exercise of the right should be viewed as a violation of social order. Unless it does not fall under such a case, even if there is a significant loss on the other party than the benefit that the exercise of the right gains, such circumstance alone does not constitute abuse of right (see, e.g., Supreme Court Decisions 2002Da22083, 22090, Sept. 4, 2002; 2008Da67651, 67668, Feb. 12, 2009).
The lower court determined that: (a) the market price of the building of this case was approximately KRW 4.3 billion at the time of January 19, 205, while the market price of the building of this case was approximately KRW 1.8 billion; (b) the market price of the land at the time of June 22, 2007 was KRW 2.5 billion; and (c) the Plaintiff acquired the land at the time of auction in excess of KRW 1.52 billion; and (b) the building of this case was 7 billion at the time of discontinuance of construction work until around October 197, the Plaintiff was 197, and the total construction cost of the building of this case was 1.5 billion, which was 6 billion, and the building of this case was 1.5 billion, which was newly constructed and purchased by Nonparty 1, the lower court, despite being aware of the fact that the new construction price of this case was 1.5 billion, and thus, it was difficult for the Defendant to remove the building of this case to the extent that it was actually demolished.
However, it is difficult to accept the judgment of the court below for the following reasons.
As recognized by the court below, while the total construction cost of the building of this case was about 8.5 billion won, the plaintiff acquired the land of this case about 1.55 million won through auction, and considerable damage to the plaintiff's interest due to the removal of the building of this case, and upon the removal of the building of this case, the number of buyers and subcontractors who directly purchase the store of this case or intend to receive the construction cost from the sale price will suffer damage and social and economic losses. However, the above legal principles and the court below and evidence duly examined by the court below are as follows, it is difficult to view that the plaintiff's claim for the removal of this case's building of this case was difficult to view that the plaintiff's sale of this case's land of this case was an abuse of rights against the plaintiff's 6th of December, 201, and it is difficult to view that the plaintiff's sale of this case's land of this case was the removal of this case's 6th of the building of this case's high price of the building of this case to the plaintiff.
Nevertheless, the court below held that the plaintiff's request for removal and delivery of the building of this case constitutes abuse of rights. Thus, the court below erred in the misapprehension of legal principles as to abuse of rights, which affected the conclusion of the judgment. The ground of appeal pointing this out has merit.
Therefore, the part of the lower judgment against the Plaintiff is reversed, and that part of the case is remanded to the lower court for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Kim Young-ran (Presiding Justice)