[1] Where private land is actually used as a road, the standard for determining whether a landowner renounces his/her right to benefit from use or accepts the use of the road

[2] The case holding that the owner may be deemed to waive his right to use and benefit from the remaining land in case where the remaining land has been used as the only passage from the divided land to the contribution from the divided land after the land owner divided and sold the land

[1] 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 the right to free traffic to neighboring residents or the general public by providing the land as a road, or gives up exclusive and exclusive rights to use the land, it shall be determined carefully by comprehensively examining the circumstances such as the circumstance and period he owns the land, the situation and scale of the sale in installments of the remaining land, the location and nature of the land to be used as the road, relationship with other neighboring land, surrounding environment, etc., and the degree of contribution to the land concerned for the effective use and profit of the remaining land sold in installments.

[2] In a case where the remaining land remaining after the owner of the land sold by dividing it into several parcels is used as a passage, the case holding that if most of the lands sold by the land prior to subdivision are the land remaining after no other passage through the surrounding area is the only passage to the public road, and the remaining land is the land located at the edge of the land prior to subdivision and its width is narrow, and its total area is 115 square meters, and it is only 9.37% of the total area of the land prior to subdivision, it is reasonable to view that the owner of the land prior to subdivision grants the purchaser or residents the right to free access to the land and waives his exclusive and exclusive right to use the land

[1] Article 741 of the Civil Code / [2] Article 741 of the Civil Code

[1] [2] Supreme Court Decision 93Da31412 delivered on May 13, 1994 (Gong1994Sang, 166), Supreme Court Decision 93Da54347 delivered on November 25, 1994 (Gong1995Sang, 81) / [1] Supreme Court Decision 95Da3946 delivered on November 24, 1995 (Gong1996Sang, 150), Supreme Court Decision 95Da3917 delivered on March 26, 1996 (Gong196Sang, 1370), Supreme Court Decision 97Da1829 delivered on June 27, 1997 (Gong197Ha, 294, 195Da394979 delivered on April 195, 195) / [398Da94979 delivered on June 196, 195)

Plaintiff

Gangseo-gu Seoul Metropolitan Government (Attorney Go Young-deok, Counsel for defendant-appellant)

Seoul High Court Decision 96Na37772 delivered on May 28, 1997

The judgment below is reversed and the case is remanded to Seoul High Court.

We examine the grounds of appeal.

1. According to the reasoning of the lower judgment, the lower court: (a) held that the land was located in Gangseo-gu Seoul (No. 1 omitted; 84 square meters; hereinafter “1”) and (b) road No. 103 square meters (No. 31 square meters; hereinafter “2”) were originally owned by the Nonparty; (b) the Plaintiff inherited 9/130 shares of each of the instant land on November 10, 1967; and (c) purchased all of the remaining inheritors, and was actually used as a road by neighboring residents since before 1970; and (d) the lower court: (a) held that each of the instant land was located in the area of this case on August 6, 1970; (b) the land was located in the area of this case for use and profit-making on each of the instant land; and (c) the land was occupied by the residents of Gangseo-gu Seoul Special Metropolitan City, which was located in the area of this case for use and profit-making on each of the instant land; and (d) the land owned by the residents of Yeongdeungpo-gu Seoul Special Metropolitan City.

2. In a case where a private land is naturally occurring or is classified into a proposed road site and actually used as a road for the public traffic, the owner of the land must be carefully determined by comprehensively taking into account the following: (a) the circumstance or period during which the land was owned by him; (b) the developments 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) relationship with the neighboring land; and (e) the degree of contribution to the sale of the remaining land for the effective use and profit-making of the divided land (see, e.g., Supreme Court Decisions 95Da3946, Nov. 24, 1995; 95Da3917, Mar. 26, 1996; 95Da3917, Jun. 27, 197).

According to the records, most of the lands sold from the land before the subdivision of this case are the only passage to the public road, and each of the lands of this case is the land located at the edge of the land before the subdivision of this case, and the width of which is narrow, and its size is 115 square meters in total, and is 9.37 percent of the total area of the land before the subdivision of this case. Under these facts, there is room to view that when the deceased sells the land before the subdivision of this case by dividing it, it is possible to give the purchaser or residents the right to free access to each of the lands of this case and to waive his exclusive and exclusive use right.

Therefore, the court below should have tried to determine whether the deceased provided each of the lands of this case as a way to make a contribution from the land divided and sold by the deceased, by examining whether there exists a separate passage from the process of the division and sale of the land before the division, the location and nature of each of the lands of this case, and the ratio of its size to the entire land before the division, etc., but the court below concluded that the deceased cannot be deemed to have given his right to free passage to each of the lands of this case to the residents and given his right to use and benefit from the land of this case. The court below did not err by misapprehending the legal principles on the waiver of the right to use and benefit from the land of this case or failing to properly conduct necessary deliberation, and it is clear that such illegality affected the judgment. Thus, the argument pointing this out has merit

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Cho Chang-hun (Presiding Justice)