[1] Whether only a person who obtained permission to occupy and use a road space for the purpose of parking facilities can seek removal of facilities installed on the ground and delivery of the site (negative)

[2] In a case where a fixed structure is attached to a part of a building owned by another person, whether an exercise of the right to demand removal of interference based on the ownership of the building can seek removal of the structure (affirmative)

[1] The fact that the permission for the extension of the occupation and use period has been obtained every year after obtaining permission for the occupation and use period of a road for the purpose of parking facilities does not have the right to seek removal of facilities installed on the ground and delivery of the site.

[2] There is no room to view that a part of a building owned by another person installed and owned a facility directly obstructs the ownership, preservation, management, and other use of the building, unless there are special circumstances, and to remove the whole building in light of the installation process, location, structure, size, etc. of the facility to exclude the interference.

[1] Article 40 of the Road Act, Article 24 of the Enforcement Decree of the Road Act, Article 205 of the Civil Act / [2] Article 214 of the Civil Act

Plaintiff (Attorney Lee Im-soo, Counsel for the plaintiff-appellant)

Defendant (Attorney Kim Dong-in, Counsel for defendant-appellant)

Gwangju High Court Decision 96Na7839 delivered on April 17, 1997

The part of the judgment of the court below concerning the claim for removal of facilities is reversed, and that part of the case is remanded to the Gwangju High Court. The remaining appeal by the plaintiff is dismissed. The costs of appeal to the Supreme Court

The grounds of appeal are examined.

1. Comprehensively taking account of the evidence adopted by the court below, the non-party 1 purchased the above part of the building site on September 23, 1970 no longer than 37,249 m2 from the non-party 1, and constructed a commercial building on the ground after purchasing the permanent right of 1,434 m2 from the non-party 1, Seo-gu, Gwangju Metropolitan City. The plaintiff purchased the above part of the building indicated in the separate sheet (B) and the above part of the building owned 9.14 m2 from the non-party 1 to the non-party 1, and purchased the above part of the building site on the non-party 9 m2 from the non-party 1 to the non-party 1, the non-party 1, who acquired the above part of the building site on the non-party 9 m2 and the non-party 1, who acquired the above part of the building site on the non-party 1, the non-party 1, who acquired the above part of the building site.

In light of the records, the above fact-finding and judgment of the court below are just and acceptable, and there is no error of law by misunderstanding of facts, misunderstanding of legal principles as to road and road occupation and use permission, and the nature of occupation and use right, etc.

2. In addition, the court below held that the plaintiff's assertion that around 1987, the plaintiff requested that the defendant voluntarily remove the above part and deliver the land to the defendant after three years from the time when the plaintiff had been able to operate the business by installing the virtual stand on the ground of the part of this case, and that the above part of the above (A) has the obligation to remove the virtual stand in accordance with the above agreement, and that the above part of the above (A) within the limit of about 1m from the front of the building of this case has the right to exclusively use the goods display within the necessary scope for the purpose of ownership of the building. Since the defendant violated this, the defendant has the obligation to remove the facility and deliver the part of the land to the plaintiff for the exclusion of interference, the court below did not believe that the statement of No. 6 and the testimony of the witness of the court of first instance and the witness of the non-party 2 as shown in the above argument are not trusted and there is no exclusive right or right to exclusively use the above agreement or right to the plaintiff.

In light of the records, the judgment of the court below which rejected the plaintiff's above assertion based on the premise that the above agreement was reached between the plaintiff and the defendant is just and acceptable, and there is no violation of the rules of evidence or incomplete deliberation as alleged in the grounds of appeal.

However, the fact that the defendant is operating a steel panel facility on the ground of section 1.4 square meters adjacent to the building of this case owned by the plaintiff is recognized by the court below. According to the records, the above steel panel facility owned by the defendant is installed by attaching it to one wall of the building of this case and this floor slives, which is owned by the plaintiff. Thus, there is no room to regard that the defendant's installation of a facility by attaching it to the part of the building of this case owned by the plaintiff and owned it directly interfere with the ownership, preservation, management, or other use of the building of this case, which is owned by the plaintiff, and it is inevitable to remove the whole building in light of the installation process, location, structure, size, etc. of the building of this case, which is adjacent to the building of this case. Thus, the court below did not err by misapprehending the legal principles on the removal of the plaintiff's right to use the building of this case, which is within the scope of 9 meters from the outside of the building of this case, and it did not affect the plaintiff's right to use the building of this case.

Therefore, the argument about the claim for removal of the above facilities in the grounds of appeal is justified.

3. Therefore, the part of the judgment of the court below concerning the claim for removal of facilities is reversed, and that part of the case is remanded to the court below for a new trial and determination. The remaining grounds of appeal are without merit, and this part of the appeal is dismissed and the costs of appeal are assessed against the plaintiff. It is so decided as per Disposition

Justices Lee Im-soo (Presiding Justice)