[1] The case where the owner of a building can seek the removal of a structure installed on the land by exercising the right to claim the removal of interference based on the ownership of the building

[2] The requirements and method for determining whether the exercise of rights constitutes abuse of rights

[3] The case holding that the act of installing a block fence in the form of blocking the entrance of a neighboring commercial building on one's own land, which is used as a passage leading to a public road, constitutes an abuse of rights since it was done for the purpose of hindering the use and profit-making of the above commercial building and causing damage

[1] In a case where a landowner’s act of installing a structure on his/her own land constitutes an abuse of rights in relation to the owner of a neighboring building. Accordingly, if the use and profit-making of the owner of a neighboring building resulted in a substantial infringement, the owner of a neighboring building may seek removal of the structure against the landowner by exercising the right to claim removal of interference based on the ownership of the building.

[2] If the exercise of the right is intended to inflict pain or damage on the other party, and there is no benefit to the person who exercises the right, and it can be objectively deemed that it violates the social order, the exercise of the right is not allowed as an abuse of rights, and the subjective requirement that the exercise of the right is to inflict pain or damage on the other party can be ratified by objective circumstances, which show that the exercise of the right lacks legitimate interest of the right holder. Whether the exercise of the right becomes an abuse of the right should be determined by individual and specific cases.

[3] In a case where a multi-family house was built on the ground owned by Gap and its remaining land was used as a passage leading to a contribution, but Eul removed the previous building site and newly constructed a commercial building, and installed a block fence in front of the entrance door of the above commercial building, the case holding that Gap's act of installing the above block fence constitutes an abuse of rights because it does not cause any harm to Gap's use or profit-making, since it does not constitute an abuse of rights, since Gap's act of installing the above block fence was not a form of blocking the entrance of the commercial building, it is not a part of the above block fence constructed in a form of blocking the above commercial building, the interval between the above commercial building and the block fence is at least 50cm, and neighboring residents are using the above passage, and there is no profit to Gap due to the installation of the block fence, and there is no possibility that the above remaining land is used for any purpose other than a passage.

[1] Articles 2(2) and 214 of the Civil Act / [2] Article 2(2) of the Civil Act / [3] Articles 2(2) and 214 of the Civil Act

[1] Supreme Court Decision 73Da91 Decided August 31, 1973 (Gong1973, 7423) / [2] Supreme Court Decision 2003Da40422 Decided November 27, 2003 (Gong2004Sang, 17) Supreme Court Decision 2009Da79378 Decided February 25, 2010

Plaintiff (Attorney Lee Ho-hoon et al., Counsel for the plaintiff-appellant)

Defendant (Law Firm Shin, Attorneys O Dong-dong et al., Counsel for defendant-appellant)

Seoul High Court Decision 2009Na50409 decided July 2, 2010

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

If a landowner’s act of installing structures on his/her own land constitutes an abuse of rights in relation to the owner of a neighboring building; accordingly, if a result of substantially infringing upon the owner’s use and profit-making of the neighboring building, the owner of the neighboring building may exercise the right to demand removal of the structure against the landowner by exercising the right to demand removal of interference based on the ownership of the building (see Supreme Court Decision 73Da91, Aug. 31, 1973). Meanwhile, if the exercise of the right is only subjectively causing pain to the other party and causing damage to the other party, and there is no benefit to the person who exercises the right, and it can be seen as objectively violating social order, the exercise of the right is not allowed as an abuse of rights, and the subjective requirement that the exercise of the right is for causing suffering or damage to the other party can be confirmed by objective circumstances, which show that the exercise of the right is an exercise of the right without legitimate interest of the right holder. Whether the right constitutes an abuse of rights should be determined by individual and specific cases (see Supreme Court Decision 2003Da404222, Nov. 27

(4) According to the reasoning of the judgment below, the court below found that the Plaintiff’s act of installing the instant block 1 and the instant building 2 with the height of 151m2 (hereinafter “the instant building site”) on the 7th floor of the instant building located on the 5th square meters of the instant building at the end of 204, and that the Plaintiff was residing in the 3rd floor of the instant building on the said 4th floor after purchasing the instant building at around 204, the number of the 7th square meters of the instant building, which was located on the 5th square meters of the instant building and the 5th square meters of the instant building, was not possible, and that the instant building 4th square meters of the instant building, which was located on the 5th square meters of the instant building, was located on the 7th square meters of the instant building, and that the instant building 4th square meters of the instant building, which was located in the same direction as that of the lower court’s 193 square meters of the instant building site.

However, such determination by the court below is difficult to accept in light of the aforementioned legal principles and the following circumstances.

First, according to the evidence duly adopted by the court below and the first instance court, although the stairs entrance of the previous building prior to the construction of the building of this case was located in the opposite part of the passage of this case, there was separate entrance between the building owned by the plaintiff and the building owned by the defendant, the interval between the building owned by the plaintiff and the block fence of this case is merely about 50cm and it is difficult to open the entrance, and the end of the wall (the side of the new market) is installed up to the electric poles, and it is hard to see the fact that the body cannot be cut off. Therefore, in determining that the defendant's act of installing the block of this case does not constitute abuse of rights, the above circumstances are not considered as the factors to be considered as abuse of rights. Meanwhile, in light of the above circumstances, even if the building owner of the new building of Yangcheon-gu Seoul Metropolitan Government (number 6 omitted) multi-family house constructed the above multi-family house, it is difficult to find out the remaining circumstances of the defendant's act of installing the passage of this case as well as the above circumstances.

Furthermore, according to the reasoning of the judgment of the court below and the records on other circumstances that were not considered as factors, ① the entrance of the second and third floors of the commercial building of this case was installed towards the passage of this case. The block fence of this case is constructed in the form of blocking the entrance, ② When the plaintiff removed the building of this case and newly constructed the commercial building of this case, conflict with the defendant, it seems that the defendant had no other function than those of the building of this case. ③ The interval between the building owned by the plaintiff and the wall of this case is 50 centimeters and it is very difficult for the plaintiff to pass the building of this case. The defendant's act of installing the apartment house of this case was installed to the end of the building of this case, and it is sufficient for the court below to see that the defendant's act of installing the apartment house of this case was an abuse of rights, and there is no possibility that the defendant's act of removing the building of this case, including the building of the building of this case, can be seen as using the building of this case for other use of the building of this case.

Therefore, without further proceeding to decide on the remaining grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Young-chul (Presiding Justice)