[1] The method of determining whether the local government's de facto control over the land offered for the passage of the general public has been lost by any act of the local government and its possession has been terminated

[2] The case holding that even if a local government removed a news reporting block on the land, the local government still occupies it as long as it is used for the passage of the general public, since it is reasonable to view that the land of a rectangular type enclosed by a roadway owned and managed by the local government, delivery, etc. is one of the roadways, delivery, etc. and provided for the passage of general

[1] In determining whether a local government's de facto control over the land offered for the passage of the general public has been lost due to a local government's act and possession thereof has been terminated, the determination shall be based on the following factors: (a) the land in question contributes to the passage of the general public; (b) the mode and method of passage; (c) whether the owner can limit the passage of the general public; and (d) the owner's exclusive use of the land

[2] The case holding that since it is reasonable to view that the land of a rectangular type enclosed by a local government's roadway, delivery, etc. is the land provided for the passage of the general public in light of various circumstances, such as the above roadway, delivery, etc., even if the local government removed the sidewalk block under such circumstances, as long as the land is used for the passage of the general public without distinguishing it from the previous neighboring land, the local government still occupies it

[1] Articles 192 and 741 of the Civil Act / [2] Articles 192 and 741 of the Civil Act

Plaintiff

Daegu Metropolitan City Jung-gu

Daegu District Court Decision 2009Na4266 Decided September 22, 2009

The part of the lower judgment against the Plaintiff is reversed, and that part of the case is remanded to the Daegu District Court Panel Division.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Based on evidence adopted by the court below, the court below acknowledged that the plaintiff purchased the above land in the procedure for compulsory auction and completed the registration of ownership transfer on June 13, 2008 after full payment of the price was made. The land in this case was used as a road since its land category was changed on December 21, 1963, and it was used as a road since it was 2636-67, Nam-gu, Daegu-gu, 2654 square meters on the same side and 2698-12, 40 square meters of the same road and 2636-14 square meters, and 12 square meters of the above 269-12 square meters of the above land. The court below determined that the defendant had not been installed on the above 269-19-12 square meters of the above land and it was reasonable for the defendant to establish the above 9-26366-166-266-636-64 of the above land without consultation among the owners of the above 19-26-19-19-6-666-6-666-66-2 of the above land.

2. However, we cannot accept the judgment of the court below.

In order to say that an object belongs to a factual control under the social norms, possession refers to an objective relationship that shows that it belongs to a person's factual control, and that it is de facto control, it shall not necessarily mean physical and practical control, but shall be judged in conformity with social norms in consideration of the time, space and principal relation with the object, the possibility of exclusion from others' control, etc. (see Supreme Court Decisions 95Da8713, Aug. 23, 1996; 2009Da39530, Sept. 24, 2009; 2009Da39530, Sept. 24, 2009). Therefore, in determining whether a local government's de facto control over the land offered for the passage of the general public has been lost due to any act of a local government and its possession has been terminated, it shall be determined in full view of the contents, mode and method of contributing to the passage of the general public, the owner's exclusive use of the relevant land can be determined.

According to the records, the land of this case is a piece of land which is surrounded by the road owned and managed by the defendant, delivery, etc., and has a short side and two sides, and is a very narrow and long-scale area of 11 square meters in size. In full view of the facts acknowledged by the court below, it is reasonable to deem that the land of this case is a land that the defendant provided for the passage of the general public as a whole with adjacent roadways, delivery, etc. owned by the defendant. Thus, even if the defendant removed the sidewalk block on the land of this case, if it is used for the passage of the general public without distinguishing it from the adjacent land as before, it shall be deemed that the defendant still occupies it.

Therefore, the court below erred by misapprehending the legal principles on the possession and use of land or by violating the rules of evidence, which affected the conclusion of the judgment. The purport of the appeal pointing this out is with merit.

3. Therefore, the part of the lower judgment against the Plaintiff is reversed, and that part of the case is remanded to the lower court for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jeon Soo-ahn (Presiding Justice)