beta
Text
The judgment of the court below is reversed, and the case is remanded to the District Court Panel Division.
Reasons
The grounds of appeal are examined.
1. In a case where the exercise of the right is intended to inflict pain and damage on the other party, and there is no benefit to the person who exercises the right, and there is no objective violation of social order, the exercise of the right is not allowed as an abuse of the right, and the subjective requirement that the exercise of the right is to inflict pain and damage on the other party can be confirmed by objective circumstances, which appear to have been due to the exercise of the right holder's exercise of the right without legitimate interest. Whether the exercise of the right constitutes an abuse
(See Supreme Court Decision 2003Da40422 Decided November 27, 2003, and Supreme Court Decision 2010Da59783 Decided December 9, 2010, etc.). 2. According to the reasoning of the first instance judgment as cited by the lower court and the evidence duly admitted, the following facts and circumstances are revealed.
The Plaintiff (hereinafter “instant land”) received a successful bid of KRW 13,99,000 as indicated in the lower judgment, the land category of which is a ditch in the public sale procedure conducted by the Defendant on February 22, 2012, and completed the registration of ownership transfer on May 4, 2012.
B. In the case where the center of the land of this case is interrupted, there are 88 square meters of concrete material in the part (a) on the ship (hereinafter “the ditch of this case”) which connects each point of Section 1, 2, 3, 4, 5, 6, 1, 1 in sequence, as indicated in the judgment of the court below.
Considering that the land category of the instant land was changed to a ditch on July 24, 1970, the instant ditch appears to have reached the present time by re-construction at least around that time or after that time, and in light of the practice of public sale, the Plaintiff appears to have been awarded a successful bid for the instant land, knowing that the ditch was installed.
C. The ditches of this case shall be at the point of 2.5km at the bottom of the ditches consisting of a section of 3.5km in total.