[1] Whether a landowner can seek the removal of disturbance and the return of unjust enrichment from the occupation of a landowner who illegally occupies a parcel of land deemed to have waived the exclusive right to use and benefit

[2] Requirements for the prescriptive acquisition of traffic area

[1] Even in cases where the owner of land, which was naturally and actually used as a planned road area, is deemed to waive his/her exclusive and exclusive right to use and benefit from the land, insofar as it does not obstruct the passage of the general public, it shall not be deemed that the owner of land, as the owner of the land, has the right to dispose of or use and benefit from the land. Thus, a third party who illegally occupies the land may exercise a real right right to claim the return, removal of interference, and prevention of the land. However, barring any special circumstance, the owner of land shall not be entitled to exclusively or exclusively use and benefit from the land even after the land, and therefore, even if the third party illegally occupied the land, it cannot be deemed that any loss has occurred to the owner of the land, and thus, the return of unjust enrichment from such possession

[2] Since the provisions of Article 245 of the Civil Code shall apply mutatis mutandis only to cases where the servitude continues and express, the acquisition of prescription can be recognized only when the objective situation where the owner of the dominant land constructed a road on the top of the servient tenement and uses the servient tenement continues for the period stipulated in Article 245 of the Civil Code.

[1] Articles 213, 214, and 741 of the Civil Act / [2] Articles 245 and 294 of the Civil Act

[1] Supreme Court Decision 91Da11889 delivered on July 9, 1991 (Gong1991, 2126), Supreme Court Decision 91Da1100 delivered on July 12, 1991 (Gong1991, 2145), Supreme Court Decision 97Da5284 delivered on May 8, 1998 (Gong1998Sang, 1583), Supreme Court Decision 91Da46861 delivered on May 11, 1993 (Gong193Ha, 1664), Supreme Court Decision 94Da42525 delivered on January 20, 195 (Gong195, 894), Supreme Court Decision 95Da109389 delivered on June 13, 1995 (Gong195, 195Da1395395 delivered on June 13, 1995)

The deceased Plaintiff (Attorney Full-time Training, Counsel for plaintiff-appellant)

Defendant (Appointed Party) 1 and four others

Busan District Court Decision 200Na2839 delivered on December 21, 2000

The part of the judgment of the court below ordering payment of money is reversed, and that part of the case is remanded to Busan District Court Panel Division. The remaining appeal is dismissed.

1. Summary of the reasoning of the judgment below

According to the reasoning of the lower judgment, the lower court: (a) opened 1/3 of the Plaintiff’s land of this case on the 6th day of Busan-gu, Busan-gu, and 321m2 (hereinafter “instant land”); (b) the Plaintiff’s 1/6th day of construction of the instant land and the Nonparty’s 1/6th day of construction of the 9th day of construction of the 9th day of construction of the instant land; and (c) the Plaintiff’s 1/6th day of construction of the 9th day of construction of the instant land and the 1/6th day of construction of the 19th day of construction of the 1st day of construction of the instant land; and (d) the Plaintiff’s 1/6th day of construction of the 9th day of construction of the instant land and the 1/6th day of construction of the 19th day of construction of the instant land; and (e) the Plaintiff’s 1/6th day of construction of the instant land was divided into 1/3th day of construction of the instant land.

2. Judgment on the grounds of appeal

A. As to the waiver of exclusive and exclusive use rights and the claim for restitution of unjust enrichment

Even in cases where an owner of land, which has been naturally and actually used as a road site, is deemed to have renounced his/her exclusive right to use and benefit from the land, as a landowner, to the extent that it does not interfere with the passage of the general public, it shall not be deemed that he/she has lost his/her right to dispose of or use and benefit from the land. Thus, a third party who illegally occupies the land may exercise a real right claim against a third party, claiming the return, removal of interference, and prevention of the land. However, barring special circumstances, the landowner may not use and benefit exclusively from the land even after the land, and therefore, even if the third party illegally occupied the land, it cannot be said that any loss has occurred to the landowner, and thus, the return of unjust enrichment from such possession cannot be claimed.

However, the part of the land in this case possessed by the defendant and the designated parties is not a road passing by the neighboring residents, but is used in their personal buildings, store sites and coordinates. Thus, even if the owner of household source renounced his right to exclusive use and benefit from the land in this case, it cannot be deemed that the defendant and the designated parties renounced their right to use and benefit from the land even if they use the land as an individual's place of business or building site by specifying a part of the land, and in this case, the owner is deemed not to have renounced his exclusive and exclusive right to use and benefit from the land, or is deemed to have restored his exclusive and exclusive right to use and benefit from the land. However, even if the plaintiff renounced his exclusive and exclusive right to use and benefit from the land in the conclusion of the judgment of the court below, the part which judged that the defendant and the designated parties can seek removal of the building constructed in each possession, removal and delivery of the land, and removal of the board of association installed in the possession of the land, and it is just and justified, and there is no ground for appeal on this part of the grounds for appeal

However, according to the above legal principles, if the Plaintiff renounced exclusive and exclusive right to use the land of this case, even if the Defendant and the designated parties illegally occupied the land of this case, it cannot be deemed that any loss incurred to the Plaintiff, and thus, the return of unjust enrichment from possession cannot be claimed. Therefore, the lower court should have examined whether the original owner of the land of this case renounces or loses exclusive and exclusive right to use, but without doing so, accepted the portion seeking return of unjust enrichment from possession against the Defendant and the designated parties on the grounds as stated in its reasoning. In so doing, the lower court erred by failing to exhaust all necessary deliberations, and by misapprehending the legal principles on the waiver of exclusive and exclusive right to use and benefit. The part disputing this issue in the grounds of appeal is with merit.

B. As to the prescriptive acquisition of the passage area

Article 245 of the Civil Act shall apply mutatis mutandis only to cases where servitude continues and express, so the owner of the dominant land may recognize the prescriptive acquisition only when the objective situation where the owner of the dominant land installs a road on the dominant estate and uses the servient estate continues to exist for the period prescribed in Article 245 of the Civil Act (see, e.g., Supreme Court Decisions 92Da20385, Sept. 8, 1992; 91Da46861, May 11, 1993; 94Da42525, Jan. 20, 195; 95Da1088, 1095, Jun. 13, 1995).

According to the facts acknowledged by the court below, since the general public does not establish a passage road on the land of this case for his own land, it cannot be acquired by prescription (it is clear that the defendant and the designated parties have not opened a passage road on the land of this case for his own land, and the possession period has not yet passed 20 years, which is the acquisition by prescription period of the passage area). Accordingly, the court below's rejection of the defendant's assertion as to the acquisition by prescription of the passage area is just and correct, and there is no error of law by misapprehending the legal principles, lack of reason, or inconsistent reasoning.

3. Conclusion

Therefore, the judgment of the court below on the part that the plaintiff seeks to exclude interference with the ownership of the land of this case is justifiable, but the decision on the part that seeks to return unjust enrichment is improper. Therefore, the part that ordered payment of money to the defendant and the designated parties among the judgment below is reversed, and this part of the case is remanded to the court below for further proceedings consistent with this Opinion. The remaining appeal is dismissed as it is without merit. It is so decided as per Disposition by the assent

Justices Son Ji-yol (Presiding Justice)