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1. The plaintiff's claim is dismissed.
2. The costs of lawsuit shall be borne by the Plaintiff.
Reasons
1. Basic facts
A. The Plaintiff completed the registration of ownership transfer as Seoul Western District Court No. 3211 on January 23, 1984 with respect to the land B, Yongsan-gu Seoul Metropolitan Government (hereinafter “instant land”).
B. The instant land is being used as a road for access to neighboring land to a public road, and the Defendant actually manages and occupies the instant land as a road.
[Ground of recognition] Facts without dispute, Gap evidence No. 1, Eul evidence No. 4, purport of the whole pleadings
2. The assertion and judgment
A. The purport of the parties’ assertion is that the Plaintiff gains profits by occupying and using the instant land as a road without any legal ground, and thereby causes damage to the Plaintiff. As to the Plaintiff seeking payment of KRW 173,672,40, an aggregate of the unjust gains equivalent to the rent from 2014 to 2018, the Defendant renounced the exclusive right to use and benefit from the instant land in light of the process and form of the division, etc. of the instant land. The Plaintiff, who purchased the instant land, also admitted the circumstance that the former owner of the instant land was limited to the use and benefit, or acquired the instant land with knowledge of such circumstances, he/she cannot exercise the exclusive right to use and benefit from the instant land.
B. In a case where a landowner of the relevant legal doctrine provides the land owned by him for the purpose of the general public, such as a road, the following: (a) details and period of possession of the land; (b) details and scale of the land owner’s provision of the land for use by the public; (c) existence of the owner’s interest or benefits from the provision of the land; (d) location and form of the relevant part; (e) relationship with neighboring land and surrounding environment; and (e) the comparative balancing between the ownership guarantee of the landowner and the public interest, if the owner may be deemed to have waived the exclusive exclusive right to use