Plaintiff (Attorney Park Jong-young et al., Counsel for the plaintiff-appellant)

[Defendant-Appellee] The Head of Si/Gun/Gu

June 22, 2016

Suwon District Court Decision 2013Da53256 Decided November 12, 2014

1. Of the judgment of the court of first instance, the part against the defendant ordering the removal of excellent pipes installed in the part connecting each point of the attached Form Nos. 29, 30, 31, and 32 among the land in the annexed Form No. 29, 30, 31, and 32, and the part against the defendant ordering payment in excess of the money ordered below

The defendant shall pay to the plaintiff 268,520 won with 5% interest per annum from May 8, 2013 to the day of full payment.

2. The defendant's remaining appeal is dismissed.

3. 4/5 of the total litigation costs is assessed against the Plaintiff, and the remainder 1/5 is assessed against the Defendant, respectively.

1. Purport of claim

The defendant removes the wastewater pipes installed in the part that connects each point of the attached Form 29, 30, 31, and 32 among the land in the attached Form list and the part that connects each point of the attached Form 17, 37, and 38, respectively, and pays to the plaintiff 25,737,800 won and 5% interest per annum from May 8, 2013 to the day of complete payment.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Basic facts

A. On May 29, 1995, the Plaintiff succeeded to the real estate listed in the separate sheet (hereinafter “instant land”) from Nonparty 1 (Plaintiff’s father, death around 1994) in consultation and division.

B. Among the land in this case, "A" connecting each point of 29, 30, 31, and 32, which is indicated in the annexed drawings, is laid underground, "A water pipe (hereinafter referred to as "the water pipe in this case") in which wastewater discharged from a neighboring house flows into a neighboring house is laid underground. Nonparty 1 constructed a wood structure on March 3, 1987 with a studio and a studio of 21.19 square meters in total floor area of 221.19 square meters in the building register and registered as the owner in the building register and used it as a site. The plaintiff removed and removed it, and the water pipe in this part (hereinafter referred to as "the wastewater pipe in this case") is laid underground, and the ground is being used as a road.

[Ground of recognition] Unsatisfy, Gap evidence 1, 2, 3, Eul evidence 1 (including each number), the result of surveying and appraising the intellectual property of the court of first instance, the purport of the whole pleadings

2. Determination

A. Determination on the cause of the claim

First, as to whether the Defendant is laid underground and the managing body of the center of this case, it appears that the part above the ground of the center of this case, which the Defendant recognized as laid underground, is connected to the structure of the center of this case. ④ In light of the packaging condition of the road and the shape of the center of this case, the excellent center of this case and the center of this case are installed at least before 195 years prior to the Plaintiff’s ownership ownership, ② the total length of the center of this case, which flows into wastewater flowing from neighboring housing, ② the front part of the house removed from the access road of this case, are covered by concrete; ② the center of this case is installed at the middle of the entrance of this case; ③ the part above the ground of the center of this case, which the Defendant recognized as laid underground, are used as the concrete package of this case; ④ In view of the shape of the center of this case, it appears that the excellent center of this case and the center of this case are installed as the main body of this case’s improvement project and the construction cost of the center of this case.

Therefore, barring special circumstances, the Defendant is obligated to return to the Plaintiff unjust enrichment acquired by occupying the underground portion laid underground where the relevant excellent pipes and wastewater treatment pipes were laid underground from April 22, 2013, which was five years earlier than the date of the instant lawsuit, from the date of the instant lawsuit, to April 22, 2013, which was five years earlier than the date of the instant lawsuit.

B. Judgment on the defendant's assertion

1) Summary of the defendant's assertion

The non-party 1 provided the land in which the wastewater pipe of this case and the superior company are installed to allow the underground part of the land in which the wastewater pipe of this case and the superior company are laid underground, and renounced the exclusive and exclusive right to use the land, and the plaintiff, who is the inheritor, inherited the land in which such restriction is limited, shall not seek unjust enrichment equivalent to the delivery of the land or rent.

In the case of the wastewater treatment plant of this case, it is constructed below the road actually used for public use, and it is anticipated that the removal would result in a loss to the extent difficult to be acceptable, which is contrary to the principle of good faith. This is not an unfavorable disadvantage to the plaintiff, so it shall not

Even if the duty of return of unjust enrichment is recognized, the superior officer of this case is laid underground in part of the land of this case, and it is unreasonable to regard it as unjust enrichment that it is a tea calculated as to the entire land of this case.

2) Whether to recognize the waiver of the right to use benefits

In a case where a certain private land is naturally occurring or is classified into a proposed road site and actually used as a public road for the traffic of the general public, if the owner of the land grants a neighboring resident or the general public the right to free access to the land by providing the land as a road or gives a waiver of exclusive and exclusive rights to use the land, it shall be determined by comprehensively taking into account the following: (a) the circumstance and holding period of the ownership of the land; (b) the details and scale of the sale of the remaining land in installments; (c) the location and nature of the land to be used as the road; (d) the relationship with the neighboring land; and (e) the surrounding environment; and (e) the extent that the land contributed to the effective use and profit-making of the remaining land partitioned and sold (see, e.g., Supreme Court Decisions 2005Da31736, May 12, 2006; 2006Da11708, Dec. 10, 2009).

First of all, according to the purport of the testimony and oral argument of Non-Party 3 as to the superior hall of this case, the statement No. 8, Eul evidence No. 3-1 through No. 17, and Non-Party 3's testimony and oral argument as to the superior hall of this case, the land of this case before the superior hall of this case was established was small ditches, and the excellent hall of this case was established as part of the Saemaul Movement around 1970-1980, and it was recognized that Non-Party 4 was a head of the village where the land of this case was located at the time of the above installation, and the above facts are acknowledged as follows: (i) Many neighbors residing in the vicinity of the land of this case were given the consent of Non-Party 1 to install the superior hall of this case; and (ii) Non-Party 1 appears to have used the superior hall of this case for his own without permission; and (iii) Non-Party 1 was also removed from the land of this case before the removal of this case's site of this case and its exclusive use.

Next, it is not sufficient to view that Nonparty 1 gave consent or given up the right to use the site laid underground at the time of the installation of the wastewater treatment plant of this case only on the health stand, Eul evidence Nos. 3-1 through 17 as to the wastewater treatment plant of this case, and there is no other evidence to support this. Thus, this part of the defendant's assertion is without merit.

3) Whether to recognize abuse of rights

However, in order to establish abuse of rights, subjectively, the purpose of the exercise of rights is to inflict pain on the other party, and there should be no benefit from the other party. objectively, the exercise of rights should be deemed to be in violation of social order. Unless it does not fall under such case, even if the damage suffered by the other party is considerably high than the benefit that the exercise of the rights gains by the exercise of the rights, such circumstance alone does not constitute an abuse of rights (see Supreme Court Decision 2002Da62319, 62326, Feb. 14, 2003, etc.). (2) It is difficult to deem that the removal of the sewage plant of this case does not objectively impossible, and (3) it is difficult to deem that the removal of the sewage plant of this case causes significant social damage, and (4) it is difficult to deem that the defendant properly recovered the Plaintiff’s ownership infringed by the installation of the sewage plant of this case or took active and necessary measures to compensate for the Plaintiff’s loss, and (4) it is difficult to deem that the defendant’s claim of this case constitutes an abuse of rights.

C. Scope of return of unjust enrichment

In full view of the result of the measurement and appraisal of the court of first instance with respect to the Korea Intellectual Property Corporation and the purport of the entire pleadings against Nonparty 5, it is reasonable to deem that the occupied part for which the Defendant is obliged to return to unjust enrichment is the underground part where the instant wastewater treatment plant is laid underground. In light of the shape of the instant land and its surrounding land, the connecting form of packing roads, and the road usage conditions, it is reasonable to deem that the part laid underground was the road from the time of laid underground. Therefore, in calculating the amount of unjust enrichment on this premise, the fact that the amount of unjust enrichment equivalent to the rent gained by the Defendant occupied for five years is recognized.

Therefore, the Defendant is obligated to pay to the Plaintiff damages for delay calculated at the rate of 5% per annum under the Civil Act from May 8, 2013 to the day of full payment, which is the day following the delivery of a copy of the instant complaint, as sought by the Plaintiff, from May 8, 2013 to the day of full payment.

3. Conclusion

Therefore, the plaintiff's claim of this case is justified within the scope of the above recognition, and the remaining claims are dismissed as it is without merit. Among the judgment of the court of first instance that partially different conclusions, the part against the defendant ordering the removal of the superior official of this case and the part against the defendant ordering payment in excess of the above recognized money is unfair, and each of them is revoked, and the plaintiff's claim corresponding to the revoked part is dismissed, and the defendant's remaining appeal is dismissed as it is so decided as per Disposition.

[Attachment]

Judges Lee Sung-py (Presiding Judge)