2014Da215383 Unlawful gains

A

Mayang-si

Seoul High Court Decision 2013Na2022148 Decided June 13, 2014

May 28, 2015

The part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the Seoul High Court.

The grounds of appeal are examined.

1. The reasoning of the lower judgment and the record reveal the following facts.

A. On March 15, 1978, C completed the registration of ownership transfer in its name with respect to the multi-purpose of 6,043 meters (hereinafter referred to as "multi-united D land prior to subdivision") prior to Gyeyang-gu D, Gyeyang-gu. At the request of C, C was divided into B B-1,013 meters from D land prior to subdivision (hereinafter referred to as "instant land").

C After dividing the land as above, most of the remaining lands were sold from September 20, 1979 to December 31, 1985 as a housing site to a third party. B. The land in this case is located in the part of D land before partitioning, its width is eight meters, and its remainder is adjacent to the remaining land. Since C purchased D land before partitioning before partitioning was divided, it was used as a road by residents residing around it, and the Gyeonggi-do Governor already decided on September 27, 1973 that the land in this case was incorporated into a “X urban planning road” as a small area of 8 meters in width, 538 meters in length of section, and 2-12 lines.

C. The instant land is offered to the general public for traffic in the state where the Defendant performed the asphalt packing work, etc., and the Plaintiff awarded a bid for the said land in the public sale on May 18, 2005 and completed the registration of ownership transfer on the 23th of the same month.

2. In a case where private land is actually used as a road due to changes in the surrounding environment after being incorporated into a road site, if a landowner renounces his/her right to use and profit therefrom, or if it is deemed that the landowner consented to the use of a road, the following should be carefully determined by comprehensively considering the following: (a) the situation and period of holding the land; (b) the details and scale of the divided sale of the remaining land in line with the urban planning line; (c) the location and nature of the relevant land used as a road; (d) the relationship with neighboring land; and (e) the degree of contribution to the relevant land for the effective use and profit-making of the remaining land partitioned and sold; and (e) the extent of contribution to the relevant land should be determined by comprehensively considering the following: Provided, That if a person newly acquired a parcel of land including the part already designated as a road site by means of sale and purchase, etc., other than the land scheduled as a road site, and provided the remaining part of the land scheduled as a site as a site for exclusive use and profit-making right (see, e.g.

However, the following circumstances revealed in the facts as seen earlier, i.e., ① the instant land was used as a road by the residents residing in the vicinity of the D land before subdivision; ② the part of the instant land prior to subdivision was designated and publicly announced as an urban planning site; ② the purchase of the said land after the purchase of the said land and the sale of most of the remaining lands other than the instant land among the divided lands, which were divided into 20 parcels, upon their own request, after being divided into a total of 20 parcels, appears to have been aware that the portion of the instant land was designated and publicly announced as a road site and its use and profit-making is restricted; ③ the instant land is located at the center of the instant land adjacent to the remaining land; ③ the instant land is used as a road connected to the form of the road, and is used as a road for the remaining land sold by C; and, in view of the above legal principles, C is reasonable to deem that the remaining part of the instant land is an exclusive right to use and benefit from the sale of the land to the general public, including the instant land.

Nevertheless, the lower court determined otherwise on the grounds stated in its reasoning that C cannot be deemed to have granted a free traffic right to the general public or given an exclusive and exclusive use right to the instant land. In so doing, the lower court erred by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or by misapprehending the legal doctrine on the waiver of the right to use land, thereby adversely affecting the conclusion of the judgment. The allegation in the grounds of appeal

3. Therefore, without examining the remainder of the grounds of appeal, the part against the defendant among the judgment below is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Supreme Court Decision 200

Justices Lee In-bok, Counsel for the appeal

Justices Kim Yong-deok

Justices Kim Gin-young