(a) Two forms occupying roads by the State or local governments;

(b) Where land designated as a planned road area under the Urban Planning Act is actually used as a road and directly or in the form of supporting community projects by residents, such as road packaging works, water supply and sewerage systems and sewerage systems, etc., the form of occupation at the time of the above land (=Possession as a de facto controlling entity)

(c) The case holding that if the land owner has given the right to use and benefit from the road portion or the right to use and benefit from the road portion without compensation to the residents, etc., after acquiring a lot of land including the reserved road and constructing a tenement house with the approval of the housing construction project plan, in order to build a tenement house, and then dividing the planned road area into a road and providing the land to the residents for passage

A. The form of occupation of a road by the State or a local government can be divided into occupation as a road management authority and occupation as a de facto controller. Thus, if the existing road is determined by the Road Act or by the determination of a road zone, or by the implementation of an urban planning project under the Urban Planning Act, the occupation as a road management authority may be recognized starting from the time when the existing road is constructed. Even if a road is not constructed under the Road Act, if the State or a local government executes the reconstruction or maintenance of a road, such as expansion of the existing road, packing of the road, or installation of sewerage system, and if it is for public use in general public traffic, it shall be deemed that the existing road is under the de facto control of the State or a local government,

(b)If any land designated as a site for a road under the Urban Planning Act is actually being used as a road after the completion of a tenement house in a large scale, the city is directly or in the form of supporting the Saemaul Project of the residents, or is in common use for the public traffic by carrying out the road packing works, the water supply and sewerage construction works, etc., the city is virtually occupying and managing the said land as a control

(c) The case holding that the landowner may be deemed to have waived his right to use and benefit from the road portion or given his right to free passage to the residents, if he acquired a lot of land, including the scheduled road area, and constructed a tenement house with the approval of the housing construction project plan, and then divided the land category into a road site and provided for the passage of the residents of the tenement house, etc.

(b)Article 741(a) of the Civil Code; (b) Article 192 of the Civil Code;

A. (B) Supreme Court Decision 90Da5795 Decided March 12, 1991 (Gong1991, 1164), Supreme Court Decision 91Da21206 Decided September 24, 1991 (Gong1991, 2607), Supreme Court Decision 92Da9692 Decided October 27, 1992 (Gong192, 3242), Supreme Court Decision 91Da35649 Decided February 26, 1993 (Gong192, 1993, 192, 192, 192, 192, 192Da4529292 (Gong193, 193, 1993, 292, 1993, 292, 292, 1993, 292, 209Da529329, 2992, 2993, 1992

Seoul High Court Decision 200Na1488 delivered on August 1, 200

Attorney Lee Sung-ho, Counsel for the defendant-appellant

Seoul High Court Decision 91Na42403 delivered on June 24, 1992

The part of the judgment below against the defendant is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

According to the reasoning of the judgment below, the court below held that the plaintiff 1, 2, and 3 land of this case were right and wrong in the name of the plaintiff 2, the plaintiff 4 land was owned by each plaintiff 2, and the ownership transfer registration was completed on February 24, 1984 (the land stated on January 24, 1986). The plaintiff 1, 2, and 3 land were owned by the plaintiff 1,620 square meters in front of the division (the address 1 omitted) and the land category of the above 1,620 square meters in front of the division (the address 2 omitted) and 103 square meters in front of the above 4th 4th 4th 7th 7th 7th 7th 7th 7th 7th 4th 4th 4th 4th 4th 4th 8th 4th 4th 96th 4th 4th 4th 96th 5th 5th 5th 4th 4th 96th 4th 8th 4th 8th 8th 8th 7.

The form of possession of a road by the State or a local government can be divided into possession and possession as a de facto controlling body of the road management authority. As such, if the existing road is in fact a public announcement of road route approval under the Road Act, a road zone is determined, or a road is constructed by the implementation of an urban planning project under the Urban Planning Act, possession as a road management authority can be recognized from the time of the existing road. If the State or a local government executes the reconstruction or maintenance of a road, such as expansion of a road, packing of a road, or installation of a sewerage system, and if it is in fact public use for public traffic, it shall be deemed that the existing road is under the de facto control of the State or a local government, and possession as a de facto controlling body can be recognized (see, e.g., Supreme Court Decisions 91Da35649, Oct. 27, 1992; 92Da9692, Oct. 9, 192; 91Da21206, Sept. 24, 1991).

As determined by the court below, the land in this case was designated as a road site under the Urban Planning Act, but the above land was supplied for the passage of the residents in the apartment house and the neighboring residents, and was actually used as a road since the completion of the apartment house construction, the defendant borne construction costs equivalent to 70 percent at the time of the execution of cement concrete package construction works on the land including the land Nos. 3 and 4 in this case. In addition, if the defendant had installed the facilities, including the water supply and drainage system, and such facilities are used for the public traffic in the general public, the above land in this case, including the water supply and drainage system, should be deemed to have been actually occupied and managed by the defendant. Thus, the judgment of the court below is correct, and there is no error of law such as misapprehension of legal principles.

The court below rejected the defendant's assertion that the plaintiffs renounced their right to use and profit from the land of this case or granted their residents the right to free access to the land of this case by providing the land of this case as a road for their convenience, and there is no evidence to acknowledge that the plaintiffs provided the land of this case as a road only for their convenience, and the adopted evidence reveals that the plaintiffs provided the land of this case as a road of this case between 1985 and 1987, and that the defendant purchased or donated the land of this case, other than the land of this case, and the land of this case, the land of this case, including the land of this case 3 and 4 of this case, and the land of this case, the land of this case, which were owned by the defendant, and the land of this case, were constructed or donated to the land of this case including the land of this case and the land of this case. In light of the reasons why the plaintiffs could not provide the land as a road of this case and the circumstances leading up to the package of the above land, the court below rejected the defendant's assertion that the above land of this case as a voluntary offer.

그러나 원심이 확정한 바와 같이 원고들이 연립주택건립을 위한 주택건설사업계획승인신청을 하여 관할관청으로부터 연립주택 준공 전까지 도시계획상 도로예정지로 지정되어 있는 이 사건 토지들을 분할하여 그 지목을 도로로 변경할 것을 조건으로 사업계획승인을 받고, 이에 따라 원고들이 이 사건 토지들에 대한 분할 및 지목변경신청을 하여 위 토지들이 분할되어 그 지목이 도로로 변경되기에 이르렀다면, 어쨋든간에 원고들은 연립주택 건립을 위하여 관계관청의 승인조건을 받아들이고 그 연립주택의 도로(소로)에 필연적으로 편입되는 이 사건 토지들은 단순히 공부상 지목만이 도로로 변경되는 것에 그치지 아니하고 이것이 인근주민들의 통로로 제공되는것 까지도 용인한 것으로보는 것이 옳을 것이다.

In addition, as determined by the court below, if the plaintiffs acquired the land before dividing the land that was already designated as a site for a road in the urban planning for the construction of a apartment house, and constructed a apartment house on the land before dividing the land after obtaining the approval of the housing construction project plan, and divided the land of this case into a road. After the completion of a apartment house, the land of this case has been provided to the residents of the apartment house, etc., the plaintiffs can be deemed to have given the right to use and benefit from the land of this case incorporated into the road or granted the right to use and benefit from the land of this case to the residents without compensation, even in light of the circumstance and holding period in which the land of this case was owned by the plaintiffs

If the plaintiffs renounced their right to use or profit from the land of this case or granted their right to free access to the land of this case, the plaintiffs cannot exclusively use or benefit from the land of this case, and therefore, they cannot cause any damage to the plaintiffs due to the defendant's possession.

Nevertheless, the court below's decision that the plaintiffs cannot be deemed to have renounced the right to use and benefit from the land of this case or granted the residents the right to free access to the land of this case cannot be maintained, and the arguments that point this out are with merit.

Therefore, the part of the judgment below against the defendant is reversed, and this part of the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Jae-ju (Presiding Justice)