2016Da26521 Undue gains

A

Gwangju Metropolitan City North-gu

Gwangju District Court Decision 2015Na51704 Decided October 19, 2016

April 13, 2017

The judgment of the court below is reversed, and the case is remanded to the Gwangju District Court Panel Division.

The grounds of appeal are examined.

1. In a case where the head of a Si/Gun does not implement an urban planning project without implementing the urban planning project by publicly announcing the land that is one of the urban planning facilities, and actually uses the neglected land as a road for the traffic of the general public, if the owner of the land grants the right to passage without compensation to neighboring residents or the general public, or if it appears that he/she given exclusive and exclusive rights to use and benefit from the land, he/she shall be deemed to have given the said land by himself/herself as a road, he/she has given the right to use and benefit from the said land, the circumstance or scale of his/her sale of the land in line with the urban planning plan, the location and nature of the land to be used as a road, the relationship with neighboring land, the surrounding environment, etc., and the degree of contribution to the remaining land to be sold shall be determined carefully by taking into account the following factors: (a) if the owner of the land, such as the right to use and benefit from the land, is deemed to have been partially used as a part of the land to be publicly announced by the Supreme Court; (b).

2. Review of the reasoning of the lower judgment and the evidence duly admitted reveals the following facts.

A. From January 23, 1954, the Plaintiff’s mother owned a square meter of F 1,002m (hereinafter “F land before division”) from June 30, 1972, and D 740m (hereinafter “D land before division”) from June 30, 1972, and the Plaintiff purchased all shares on October 24, 1987,00 after the Plaintiff succeeded to one half of each of the above lands together with O on March 13, 1984.

B. On July 14, 1986, the Do governor issued a public notice of urban planning decision and cadastral approval to newly establish a 10-meter small road (the 1st class 272 line in small roads) in the section of 143 meters wide from C through F in the quasi-residential area (hereinafter referred to as the "public notice of this case", and the 'the site planned to be installed as the above small road site'), F land before subdivision, and part of D land before subdivision were included in the proposed road site of this case.

C. (1) (1) from D’s land before subdivision divided into: P response 115m on August 6, 1990 and Q response 10m; ② The remaining land after the division was divided into E, E, 485m (hereinafter “instant land”) on September 4, 1992 and D, and the land category of the instant land No. 1 on the same day was changed to “road”; thereby, the part included in D’s land intended for the instant road was the entire land of this case.

(2) On January 31, 1992, the Plaintiff obtained a construction permit with respect to the portion of 130 square meters in D paddy-gu, D, 192, and completed the construction of the three-story reinforced concrete building on September 16, 1992, and around that time, sold the said land and buildings to J.

D. (1) On August 25, 1990, the Plaintiff purchased K 762 square meters from Gwangju High-speed Co., Ltd., and divided R 503 square meters from the above land on September 3, 1993, and sold it to Gwangju Metropolitan City on January 6, 1994.

(2) ① From the F before the subdivision, the land category of the instant land was divided into 392 square meters on September 3, 1993. ② The F Return 259 square meters on March 2, 1995 was combined with the F Return 610 square meters on March 2, 1995. ③ The F Return 869 square meters was divided into G reply 315 meters (hereinafter referred to as “the instant land”) and F Return 554 meters, and the land category of the instant land No. 2 was changed to “the instant land category” on the same day. Accordingly, the instant land No. 2 constituted the instant road site.

(3) On December 1, 1994, the Plaintiff obtained a building permit with respect to FY 554 square meters, and completed the construction of the three-story reinforced concrete building on the said land on April 25, 1995. On December 26, 2012, the Plaintiff sold the said land and buildings to Lridges.

E. (1) Meanwhile, neighboring lands, including F land before subdivision and D land before subdivision, were used as farmland before the instant public notice. However, around 1989, according to the instant public notice, 11 neighboring C land was newly constructed according to the land scheduled for the instant road. From August 1990 to August 1990, the opposite part of the instant road site was developed into a housing complex by dividing and combining each land. As such, residents became to pass through using the land scheduled for the instant road that was not constructed.

(2) At the time when the Plaintiff filed an application for land division and land category change with respect to the instant land No. 1 with the head of Gwangju Northern District Office around September 1992, the instant land No. 1 and No. 2 was used as a road on concrete packaging, and the name tag of the survey inspection prepared at the time stated that the instant land No. 1 was “area excluded from the construction permission in general residential area (the securing of an urban planning line).”

(3) Around 195, the Defendant established a superior hall on the land Nos. 1 and 2 of this case, and up to now, the land Nos. 1 and 2 of this case are used for the passage of neighboring residents along with other land included in the land scheduled for the road.

3. Examining the above facts in light of the legal principles as seen earlier, the following is determined.

A. The Plaintiff was determined as urban planning facilities (road) on July 14, 1986 by the public notice of the instant case on July 14, 1986, while the Plaintiff owned each parcel of land previously owned by N for a long time, and only the construction of a road pursuant to the relevant Acts and subordinate statutes, etc. was possible. As such, the portion of the instant land Nos. 1 and 2 was limited by building construction, etc., and thus, it was not properly used.

B. Since all neighboring lands, including the land Nos. 1 and 2, including the instant land, were farmland (finites), it is difficult to deem that the instant land Nos. 1 and 2 had been used as a road at the time. However, under the premise that the instant land planned to be a road was newly constructed, the neighboring residents started using the instant land as a passage through the road including the instant land Nos. 1 and 2, and only after the construction of an apartment complex and a house was conducted on the premise of the instant land planned to be a road site after the instant announcement. As such, the restriction on use and profit-making on the instant land Nos. 1 and 2, the Plaintiff inevitably divided the corresponding part of the instant land planned to be constructed as a road into the instant land and constructed a building only on the remaining parts except the said restriction.

D. In full view of these circumstances, it is difficult to deem that the Plaintiff provided the Plaintiff’s land Nos. 1 and 2 as a road without compensation or gave up his right to use and benefit from the land, solely on the grounds that the Plaintiff voluntarily filed an application for subdivision and land category change of the instant land Nos. 1 and 2, and accordingly, the utility of the remaining land after dividing the instant land Nos. 1 and 2 has increased. Moreover, even though the Plaintiff acquired part of the instant land No. 2 after the instant public notice, it is difficult to deem that Gwangju Construction, a seller of the instant land, gave up his right to use and benefit from the instant land,

4. Nevertheless, the lower court determined otherwise solely on the grounds of the circumstances contrary to its ruling. In so doing, it erred by misapprehending the legal doctrine on the waiver of the right to use and benefit from the land, the use and benefit of which is limited by urban planning, thereby adversely affecting the conclusion of the judgment. The ground of appeal

5. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Jae-young

Note Justice Kim Gin-deok

Justices Kim Jae-han

Justices Lee Dong-won