[1] Whether the right to use or benefit from ownership can be permanently and permanently waived (negative)

[2] In a case where a land owned by a landowner is not recognized to have exclusive, exclusive, and beneficial rights as a land use status is formed by providing the land owned by the landowner without compensation or allowing passage through the general public, whether the right to use, exclusive, and beneficial rights themselves are lost in a large and conclusive manner (negative), and the standard for determining whether a landowner may assert full ownership again if an objective circumstance, which forms the basis for excluding exclusive rights to use, and right to benefit, is substantially changed due to a significant change in the land use status

[1] Since the exclusive right to use and benefit from an article is the core right to ownership, it is not allowed that the owner waives the right to use and benefit from the article in a claim relationship with a third party, or gives up the right to use and benefit from it permanently and permanently, and it is not different from creating a new real right, rather than by the law.

[2] Even in cases where it is deemed that a land owner’s own land is not recognized to have exclusive, exclusive, and beneficial rights to it, by providing it for free through the passage of the general public or by allowing its passage, etc., as long as the land owner maintains the existing status of use in light of the principle of good faith, such as gold, trust protection, etc., it is only impossible to claim a return of unjust enrichment because it can not claim damages due to failure to exclusively occupy and use it, and thereby, it does not mean that the intrinsic substance of the ownership is a sponsive and conclusive loss of the right to use and benefit, which is the essential substance of the ownership. Therefore, in cases where an objective circumstance, which serves as the basis for excluding exclusive rights to use and benefit due to a significant change in the situation of land use, is considerably changed from the time of such change of situation, the land owner shall be deemed to have been able to make a complete claim of right based on the ownership, including the right to use and benefit. In such cases, the location and physical nature of the land in question, the motive and circumstances surrounding the land to provide the general public through passage, and the change of land.

[1] Article 211 of the Civil Code / [2] Article 211 of the Civil Code

[1] Supreme Court Decision 2009Da228, 235 decided Mar. 26, 2009 (Gong2009Sang, 571)

Plaintiff (Attorney Park Young-chul et al., Counsel for the plaintiff-appellant)

[Judgment of the court below]

Seoul High Court Decision 2011Na81123 decided May 25, 2012

The appeal is dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal are examined.

1. Since the exclusive right to use and benefit from an article is the core right of ownership, it is not allowed that the owner waives his/her right to use and benefit from the article in a claim relationship with a third party, or gives up his/her right to use and benefit from it permanently and permanently, and it does not differ from creating a new real right, rather than by law (see Supreme Court Decision 2009Da228, 235, Mar. 26, 2009, etc.).

Even in cases where a landowner deems that a land-use situation in conformity with his/her own will is not recognized because he/she is formed by providing the land owned by him/her without compensation or allowing his/her passage to the general public, and thus the exclusive, exclusive, and exclusive rights to use are not recognized, this does not mean a claim for return of unjust enrichment because he/she cannot claim damages due to failure to exclusively occupy and use the land because he/she maintains the existing status of use under the principle of good faith, such as gold speech or protection of trust, etc., so long as he/she is unable to claim damages due to failure to exclusively occupy and use the land, and thereby does not mean that the intrinsic substance of the ownership, which is the fundamental substance of the right to use and the right to benefit, is clearly and definitely lost. Accordingly, if an objective circumstance, which serves as the basis for excluding exclusive rights to use and benefit due to a significant change in the situation of land after the change of situation, the landowner is entitled to make a complete claim for ownership based on the ownership, including the right to use and benefit from the land. In such case, whether there is any change in situation or not.

2. The lower court determined that the Defendant’s defense that the deceased renounced the exclusive, exclusive, and exclusive right to benefit from the land in the case of the case of the case of the case of the case of the case of the case of the case of the Plaintiff cannot be deemed to have renounced such waiver for the reasons indicated in its holding, and partly accepted the claim for return of unjust enrichment of this case as to the portion arising after November 18, 2005, as claimed by the Plaintiff, since the Defendant incorporated the land of this case into the site from 1976 to 56 square meters (hereinafter “the land of this case”) owned by the Plaintiff, and occupied and used without title.

3. A. Review of the reasoning of the lower judgment and the reasoning of the first instance judgment cited by the lower court, evidence employed by the lower court, and other records reveals the following.

(1) In 1967, the Plaintiff’s deceased Nonparty (hereinafter “the deceased Nonparty”) acquired 1,642 square meters prior to the Songpa-gu Seoul Metropolitan Government (number 2 omitted) (hereinafter “land before subdivision”) and sold it over several years from 1970 to several parcels. During that process, the Plaintiff’s land category was changed to a road upon filing an application for land category change with respect to 129 square meters prior to the intermediate part of the land before subdivision (number 3 omitted) in a narrow form (hereinafter “road site”). The instant road site is inappropriate to be used as a site. The remainder except the instant land No. 2, etc. included in the instant site as indicated below after being offered as a site by the Deceased, was used as a passage of the owner of the land partitioned for about 40 years and the neighboring residents including the building resident, etc., and most of the adjoining land partitioned and sold was used as a site.

(2) The instant road site was finally divided into 54 square meters of road (number 4 omitted) in Gangdong-gu Seoul Metropolitan Government (hereinafter “instant land No. 1”) and four lots, including the instant land No. 2. The Plaintiff succeeded to the instant land Nos. 1 and 2 among them.

(3) The instant land No. 2 was used as a side road along the south of the instant land and one road to build an access road to a neighboring site, and was used for the passage of neighboring residents. On around 1976, according to the Defendant’s determination of urban planning facilities, the instant land No. 2 and its adjoining land, etc. located south of the instant land, among the instant road sites, were all incorporated into the instant land No. 1 and the instant land No. 2 and its adjoining land.

(4) The main main main arterial roads of Seoul Metropolitan City, which are about ten-lanes with high traffic volume, as per the scale of the traffic, was completely changed from the construction of the said roads to the nature, function, and utilization of the land, which was mainly provided to the owners of adjacent housing sites or neighboring residents.

(5) The landowner of the adjacent part of the site incorporated into the said site was compensated for losses due to the process of acquisition by consultation, etc., but the Deceased or the Plaintiff did not receive any compensation on the ground that the land No. 2 was originally provided as the passage of the residents.

B. Examining the aforementioned circumstances in light of the legal principles as seen earlier, the Deceased may not claim damages therefrom, as long as such circumstances are maintained, by providing the instant road site without compensation to the owners of the relevant site or neighboring residents, etc., by selling the land before subdivision as divided into several parcels of land, and by offering it as a passage for the general public, such as the owner of the relevant site or neighboring residents.

However, since the land No. 2 in this case was incorporated into the site as a ceiling, the state of use was fundamentally changed when the deceased provided the land No. 2 in this case to the passage of the owner of adjacent land, etc., and therefore, from the time of such change of situation, the deceased and the plaintiff, the owner of this case, can exercise their rights by asserting the complete ownership of the land.

C. Therefore, the lower court determined to the effect that the deceased did not waive his exclusive right to use and benefit from the land No. 2 in the instant case, by misapprehending the relevant legal principles, thereby passing a judgment. However, inasmuch as the construction of the land as prescribed by the Incheonho Lake makes it possible to assert the exclusive right to use and benefit from the land again due to the change in the objective land use condition, the lower court’s holding that the Defendant is obliged to return unjust enrichment from the possession and use of the instant land to the Plaintiff is justifiable. Ultimately, the lower court’s error does not affect the conclusion of the judgment, and thus,

4. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Chang-suk (Presiding Justice)