1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

Purport of claim and appeal

1..

1. The court's explanation on the cause of the claim is the same as the corresponding part of the judgment of the court of first instance, and thus, accepts it as it is in accordance with the main sentence of Article 420 of the Civil Procedure Act.

2. Judgment on the defendant's assertion

A. The defendant asserts to the purport that the plaintiff's claim of this case constitutes abuse of rights since he resides in the real estate of this case in order to support D at the request of his mother-child D and D does not want D to live together with the plaintiff who is his father. If the plaintiff's claim is accepted, D must live together with the plaintiff, and this is likely to adversely affect D's health in cancer, and thus the plaintiff's claim of this case constitutes abuse of rights.

(The Defendant’s assertion that he has the right to possess was withdrawn by this Court). (B)

In order for the exercise of the right to be an abuse of the right, subjectively, the purpose of the exercise of the right is to inflict pain and damage on the other party, and there should be no benefit to the person who exercises the right, and objectively, the exercise of the right should be deemed to be in violation of social order, and unless it does not fall under such cases, even if there is a significant loss to the other party than the benefit that the exercise of the right gains by the exercise of the right, such circumstance alone does not constitute abuse of the right.

Supreme Court Decision 2002Da22083, 22090 Decided September 4, 2002, Supreme Court Decision 2002Da62319 Decided February 14, 2003, and Supreme Court Decision 2003Da40422 Decided November 27, 2003, etc.).

The following circumstances, which can be recognized through the entry of evidence No. 4, testimony of witness C and witness D, and the purport of the whole pleadings, namely, ① the Plaintiff wishes to reside in the real estate of this case due to difficult economic circumstances, ② the Plaintiff’s misunderstanding of the Plaintiff, also gather a child in the real estate of this case in consideration of the Plaintiff’s difficult circumstances.