Non-use of land without a passage leading to a contribution and justifiable grounds;

If a person who acquired the ownership of land without a passage leading to a public road fails to use such land solely on the ground that there is no passage leading to a public road without any attempt for the construction of a passage by the right to passage over surrounding land, it cannot be deemed that the owner of the land has justifiable reasons for not using it.

Article 219(1) of the Civil Act, Article 142(1)1(7) of the Enforcement Decree of the Local Tax Act

Attorney Han Han-soo et al., Counsel for defendant-appellee

[Defendant-Appellant] Dong-dong City (Attorney Park Jong-dae, Counsel for defendant-appellant)

Daegu High Court Decision 82Gu297 delivered on October 27, 1983

The part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the Daegu High Court.

The grounds of appeal are examined.

According to the reasoning of the judgment below, the court below found that the plaintiff corporation acquired the land for profit-making business in order to cover expenses incurred in performing its own business, but since the land was completely surrounded by the original land at the time of the original sale of the neighboring land, construction under the Building Act is impossible and construction of a passage by purchasing the neighboring land in order to control the contribution of the land is difficult and it cannot be used in any way other than construction of the building in order to obtain profits without taking such measures. Therefore, since January 6, 1967, the plaintiff corporation did not use the land for profit-making business and neglected it until the time of the tax disposition since January 6, 1967, after recognizing the fact that the land acquired as basic property for profit-making business by the plaintiff corporation did not use the land, which was acquired as basic property for profit-making business by the corporation, and therefore, it cannot be said that it constitutes a non-business land of the plaintiff corporation.

However, in a case where a piece of land has no access to a public road, which is necessary for the use of the land, without passing over the surrounding land, and the owner of the land cannot reach the public road or requires excessive costs, he may pass over the surrounding land to the public road, and if necessary, he may build a passage (Article 219(1) of the Civil Act). Therefore, if a person who acquired the ownership of the land without a passage leading to a public road, fails to use the surrounding land for the mere reason that there is no passage leading to the public road without any attempt for building a passage through the surrounding land, it cannot be deemed that the owner of the land has justifiable reasons for failing to use it.

In this case, the Plaintiff corporation, the owner of the land of this case without any part adjacent to the road, can use the surrounding land in a way other than the construction of the building even if the Plaintiff corporation did not purchase the surrounding land and build a passage between the surrounding land and the road by exercising the right of passage over the surrounding land. According to the records, the Plaintiff corporation itself does not have attempted to construct a passage leading to the use of the surrounding land by exercising the right of passage over the surrounding land until 15 years have passed after the acquisition of the land. As such, if the Plaintiff corporation leaves the land without using the surrounding land solely on the ground that there was no passage leading to the road without any attempt for the construction of passage, it cannot be deemed that there is a justifiable reason for not using the surrounding land as profit-making property. The lower court determined that there is a justifiable reason to view that the Plaintiff corporation has a right of passage over the surrounding land, and that there is a justifiable reason for not using the surrounding land according to the ordinary use of the building. Therefore, it is erroneous in the misapprehension of the legal principle as to "justifiable cause" as provided in Article 142 (1)7) of the Local Tax Act.

Therefore, the part of the judgment below against the defendant is reversed, and that part of the case is remanded to the Daegu High Court. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jeong Tae-tae (Presiding Justice)