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1. The plaintiff's claim is dismissed.
2. The costs of lawsuit shall be borne by the Plaintiff.
Reasons
1. Determination as to the cause of claim
A. The Plaintiff is the owner of B forest land B and 1,525 square meters (hereinafter “instant land”). The Defendant, among the instant land, installs a waterway (hereinafter “instant waterway”) on the part of 48 square meters in the ship connecting each point of the attached Form No. 4, 5, 6, 9, 10, 11, 12, and 4 in sequence, among the land in this case, and occupies and uses the waterway (hereinafter “instant waterway”).
[Ground of recognition] Facts without dispute, Gap 1 and 2, the purport of the whole pleadings
B. According to the above facts of recognition, the defendant is obligated to remove the waterway installed in the part where the waterway is installed among the land of this case and deliver the above land to the plaintiff, except in extenuating circumstances.
2. Judgment on the defendant's assertion
A. The Defendant’s assertion that the removal of the waterway and the delivery of the part of the waterway installed constitutes an abuse of rights.
B. Determination 1) If the exercise of the right is a subjective purpose of causing pain and damage to the other party, and there is no benefit to the other party, and if it can be objectively deemed that such exercise violates social order, the exercise of the right is not allowed as an abuse of rights, and the subjective requirement for causing pain or damage to the other party can be ratified by objective circumstances that can be seen as exercising the right that lacks legitimate benefit of the right holder. Whether the exercise of the right constitutes an abuse of right should be determined by individual and specific cases (see, e.g., Supreme Court Decision 2009Da79378, Feb. 25, 2010). In light of the aforementioned legal principles, the following facts and circumstances revealed by comprehensively taking into account the descriptions or images of the two through five (including the number of branch numbers), the results of the on-site verification by the court, and the overall purport of arguments, can be removed and removed as the waterway of this case.