Where private land is actually used as a road, the standard for determining whether the landowner grants the right of free traffic or waives the right of use and profit;

Article 741 of the Civil Act

Supreme Court Decision 88Meu1697 Decided July 11, 1989 (Gong1989, 1218) Supreme Court Decision 2005Da21517 Decided August 25, 2005 (Gong2005Ha, 1563) Supreme Court Decision 2010Da47681 Decided November 25, 2010

Plaintiff (Law Firm Aba, Attorneys Kim Yoon-young et al., Counsel for the plaintiff-appellant)

Dobong-gu Seoul Metropolitan Government (Attorney Im Il-tae, Counsel for defendant-appellant)

Seoul Northern District Court Decision 2012Na9728 decided March 29, 2013

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

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

1. Regarding ground of appeal No. 1

Although the court below alleged in this part of the grounds of appeal that the defendant abused the right to command the lawsuit and suffered disadvantages in the process, it cannot be found that the court below violated the law as alleged in the grounds of appeal.

2. As to the grounds of appeal Nos. 2 and 3

A. 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, 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 waives the exclusive and exclusive right to use the land, the construction should be made by comprehensively examining the following: (a) the circumstance and period he/she owns the land; (b) the developments and scale of the sale of the remaining land in installments; (c) the location and nature of the land used as the road; (d) the relationship with the neighboring land; and (e) the surrounding environment; and (e) the degree of contribution to the land in question for the effective use and profit-making of the remaining land partitioned or sold (see Supreme Court Decisions 88Da1697, Jul. 11, 1989; 2010Da47681, Nov. 25, 2010, etc.).

B. As to the defendant's defense that the plaintiff renounced exclusive right to use and benefit from the road of 235 square meters and 372 square meters of the same (number 1 omitted) road of Dobong-gu Seoul Metropolitan Government (number 2 omitted), the court below rejected the defendant's claim that the land of this case was first used as a road of this case since the determination and public notice of the part of the land as an urban planning facility (road) and the fact that the land of this case was first used as a road of this case after the determination and public notice of the land of this case was made as an urban planning facility (road number 1 omitted) and that the land of this case was excluded from the land of this case as well as the land of this case on February 1979. However, the court below rejected the plaintiff's assertion that the land of this case was not the only passage to contribute to the part of the road of this case, and it was difficult to use or benefit from this case's land of this case without compensation due to the plaintiff's lack of the right to use and benefit from this case's land.

C. However, we cannot accept the above determination by the court below for the following reasons.

(1) According to the reasoning of the lower judgment and the evidence admitted by the first instance court and the lower court, the following facts are revealed.

① On March 15, 1983, the Plaintiff purchased a total of 3,031 square meters of land (hereinafter “land before the division and merger of this case”) including 197 square meters on the road (number 3 omitted), 514 square meters on the road (number 4 omitted), 1,257 square meters on the (number 5 omitted), 358 square meters on the (number 1 omitted), 514 square meters on the (number 6 omitted), 514 square meters on the (number 6 omitted), 3,031 square meters in total (hereinafter “land before the division and merger of this case”), which was used as a garage for the company’s garage and road, etc., and agreed to be transferred all documents relating to the division at the time of conclusion of the contract between dust transportation and the contract.

② Pursuant to the division, merger, and land category change between May 13, 1983 and May 1, 1984, the land prior to the instant division and merger was 345 square meters (number 3 omitted), (number 1 omitted), 235 square meters on roads (number 7 omitted), 191 square meters on roads (number 2 omitted), 372 square meters on roads (number 2 omitted), 50 square meters on roads (number 8 omitted), 475 square meters on roads (number 9 omitted), 200 square meters on (number 10 omitted), 166 square meters on (number 12 omitted), 187 square meters on (number 12 omitted), 172 square meters on (number 14 omitted), 264 square meters on roads (number 264, 175 square meters on roads) and 167 square meters on land (number 164, 279).

③ The Plaintiff, from November 1, 1983 to August 1, 1984, sold to the Nonparty, etc. a large of 345 square meters (number 3 omitted), (number 9 omitted), (number 10 omitted), large of 200 square meters (number 11 omitted), large of 166 square meters (number 12 omitted), large of 187 square meters (number 13 omitted), large of 172 square meters (number 13 omitted), large of 264 square meters), large of 374 square meters (number 15 omitted), large of 374 square meters (number 15 omitted), and (number 15 square meters) total of eight lots of land, such as 2,183 square meters (number 15 omitted), and (number 13 omitted, and (number 9 omitted), and (3) residential building was not constructed on each residential building, and (1) residential building was constructed on each residential building, and (3) residential building was omitted.

④ On the other hand, around July 6, 1972, the Mayor of Seoul Special Metropolitan City: (a) determined and publicly announced the part indicated as “definite land survey” and the part corresponding to the road (number 2 omitted) as urban planning facilities (road) and the part indicated as “definite land survey” as the part indicated as “definite land survey; (b) around June 25, 1979, the head of Seoul Special Metropolitan City publicly announced the determination for modification that the said part of the road is included in the urban planning facilities (road number 1 omitted) instead of excluding the part indicated as “definite land” in the road planning facilities;

⑤ Prior to April 30, 1984, land part of the instant road has been used as a concrete package, and has been used as a road until now by the owners of the instant housing site and its neighboring residents’ passage, and its width appears to be less than eight meters. Around May 6, 1999, the Defendant publicly announced the road part of the instant road around May 6, 199 as to the recognition of the route (Gu road) of the Gu road.

6) Of the instant housing sites sold by the Plaintiff to the Nonparty, etc., the land on the instant part of the road was formed in the shape “A” in which the boundary of each of the instant housing sites was set in the shape “A,” which was set up in the way, depending on the boundary of each of the instant housing sites (number 3 omitted), (number 11 omitted), (number 12 omitted), (number 13 omitted), (number 14 omitted), (number 1 omitted), and (number 1 omitted), and (number 14 omitted), and (number 9 omitted without having access to the instant land.

7) The Plaintiff completed the registration of ownership transfer on August 30, 1984 with respect to three parcels of land, excluding the portion of the instant housing site, among the remaining parcels of land after the instant division and merger, including (number 7 omitted), 66 square meters (number 8 omitted), 50 square meters road (number 8 omitted), 125 square meters (number 16 omitted), and 125 square meters (number 16 omitted), but only on July 23, 2009, the Plaintiff completed the registration of ownership transfer in the future of the Plaintiff.

④ On February 2, 2009, the Plaintiff filed a lawsuit claiming the ownership transfer registration of the instant portion of the road with regard to the fire-fighting transportation (hereinafter “related lawsuit”). The Plaintiff asserted in the complaint that he/she had brought a lawsuit against the purchaser of the land from the Plaintiff on the position to clarify the right to the instant portion of the road, and that the fire-fighting transport did not register the ownership transfer registration of the instant portion of the road, even though the Plaintiff provided the Plaintiff with necessary documents for the ownership transfer registration of the instant portion of the road in the reply, it considered the method of donating the instant portion of the land to the competent Gu office, but the procedure was complicated and did not contribute.

(2) The above legal principles and the following facts revealed: ① the Plaintiff purchased the land before the division and consolidation of the instant site, which was already designated as the site for the road in the process of moving a garage, including the instant part of the road that had already been designated as the site for the road; ② the Plaintiff agreed to provide the Plaintiff with all documents necessary for the division of the instant site during a relatively short period of one year and six months; ② the above application for division, merger, land category change, etc. is deemed to have been based on the Plaintiff’s will; ③ the instant part of the instant site is the exclusive passage from a lot of land to the existing meritorious services; ③ even if the Plaintiff did not publicly notify the site location, the location and size of the instant part of the land, and the location and size of the existing building already purchased the instant part of the instant site, the Plaintiff cannot be deemed to have secured the right to use or profit from the instant part of the land as the part of the instant site by providing the Plaintiff’s right to use or profit from the road to the neighboring owner.

Nevertheless, the lower court determined that the Plaintiff cannot be deemed to waive the exclusive right to use and benefit from the instant portion of land solely based on the grounds stated in its reasoning. In so doing, the lower court erred by misapprehending the legal doctrine on the waiver of the right to use and benefit, which affected the conclusion of the judgment. The ground of appeal pointing this out is with merit

3. Conclusion

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 Yong-deok (Presiding Justice)