The case holding that it cannot be accepted as it constitutes an abuse of rights to request the reconstruction improvement project association, the trustee of the housing reconstruction site, to remove the building parts constructed in part of the reconstruction site and to deliver the building parts.

The case holding that it is not acceptable to request the reconstruction improvement project association, the trustee of the housing reconstruction site, to remove the parts of the building constructed in part of the reconstruction site and to deliver the parts of the building site because it constitutes an abuse of rights.

Article 2 of the Civil Act

Yong-Ba Housing Reconstruction and Improvement Project Association (Attorney Oi-do et al., Counsel for defendant-appellant)

Annbdo et al.

July 12, 2006

1. All of the plaintiff's claims are dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

(10) Of the 50-48 square meters of Dongdaemun-gu, 50 square meters, Defendant 2 and 84, each of the 5,4, 7, 7, 7, 7, 7, 7, 7, and 7, 7, 7, 66, and 9, 7, 7, 7, 7, and 7, 66, 7, 7, and 9, 7, 7, 7, and 7, 7, 8, and 9, 7, 7, and 7, 7, and 9, 6, and 7, and 8,000, with each of the aforesaid points indicated in the 6-2, 8,000 square meters of 5,000 square meters of 5,000,0000,0000,0000,000,000

1. Basic facts

The Plaintiff is a reconstruction and consolidation project association that constructs new houses in the Yongsan-dong, Seoul, China-gu, 580-48 and one parcel of land, and is a trustee of the above 580-48 site (hereinafter “instant site”). The Defendants, as the owner of adjacent land in the instant site, occupy part of the instant site, such as the purport of the claim, is not in dispute between the parties.

2. The assertion and judgment

A. According to the above facts, the Defendants are obliged to remove the buildings constructed in their possession to the Plaintiff and deliver the site of possession to the Plaintiff, except in extenuating circumstances.

B. Determination as to the assertion on the prescriptive acquisition of the Defendant’s Ansan-dol, Kim Il-Il, and Shin Pung-Il

(1) The above Defendants asserted that they acquired prescription by occupying each part of the possession stated in the purport of the claim in peace and performance with the intent of ownership for at least 20 years as follows.

① On July 21, 1982, Lee Jae-gu purchased and owned a building of 578-42 square meters and a building of 63 square meters on the ground (1st floor, 42.98 square meters and 8.93 square meters on the ground floor) in Jung-gu, Jung-gu, 1982, but sold the above building site and building to the street room on October 24, 1990. On March 11, 2002, the street room sold the above building site and building to the Defendant safe-line, and for over 20 years thereafter, the Defendant’s safe and public performance occupied the part of the possession of the Defendant’s safe-line stated in the purport of the claim with the intent to own it.

② From May 29, 1972, the order in which the owner possessed as the owner of Jung-gu, Jung-gu, 7, 578-43 large area of 66m2 and the building on land (52.53m2 and 7.93m2) was sold to Seosung on August 16, 198, and the letter was sold to Kim Il-il on December 8, 198, and the letter was sold to Kim Il-il on December 7, 199, respectively, the above site and building was sold to Kim Il-dong on December 7, 199, and since the order of the letter, the part of the defendant Kim Il-k's possession as stated in the purport of the claim was peace and publicly performed as the owner's intent.

③ On August 14, 1978, the Defendant Shin-hee purchased and owned a 578-49 square meters and a 89.5 square meters of land in Jung-gu, Jung-gu, Jung-gu, 1978. However, on August 16, 1985, Kim Byung-gu sold it to Kim Byung-gu. On December 26, 1987, Kim Byung-gu, and on May 15, 1991, Cho Dong-dong sold the above site and buildings to the Defendant Shin-hee-gu, and on October 12, 1992, he occupied the occupied part of the Defendant Shin-gu’s claim as owner’s intention for over twenty years.

(2) Determination:

① The starting point of calculating the starting point of the prescriptive acquisition of real estate is, in principle, the starting point of the acquisition of real estate unless the nominal owner of the real estate is the same and there is no change therein, the starting point of the acquisition is the starting point of the acquisition, and in principle, the party cannot arbitrarily choose the starting point of the acquisition, and in a case where the third party purchaser has completed the registration of ownership transfer after the completion of the prescriptive acquisition based on the starting point of the acquisition, it cannot be asserted for the prescriptive acquisition (Supreme Court Decision 98Da40688 delivered on February 12, 199). A trustee under the Trust Act, who has completed the registration of ownership transfer by entrustment of the original owner after the prescriptive acquisition period of possession of real estate, falls under a third party, who is a new interested party, the possessor cannot claim the prescriptive acquisition. The trustee is a non-corporate reconstruction association, the non-corporate owner of the relevant real estate, the co-owners of which is the non-corporate owner of the relevant real estate (Supreme Court Decision 2001Da47467

Therefore, according to the statement 6 of the evidence No. 1-6, it can be recognized that the registration of the trust against the plaintiff was made from December 12, 2003 to December 13, 2004, and there is no counter-proof otherwise. In the case of the defendant's uniforms, it cannot be asserted against the plaintiff by the registration of the trust in the name of the plaintiff that was made after 20 years from the commencement of possession. In the case of the defendant's Kim Jong-il, it cannot be asserted against the plaintiff by the acquisition through the registration of the trust in the name of the plaintiff that was made after 20 years from July 21, 1982, and even in the case of the defendant's Kim Jong-il, it cannot be asserted against the plaintiff by the registration of the trust in the name of the plaintiff that was made after 20 years from the commencement of possession in the

② On August 16, 1985, the part of the possession of Defendant Shin-hee, succeeding to the possession of the Kim Byung-gun that commenced possession from August 16, 1985, the Plaintiff may assert the prescriptive acquisition on August 15, 2005, and the possessor of an article is presumed to have occupied by his own will.

However, barring any special circumstance, it is reasonable to view that the contracting party was aware of such fact if the area of the site of the building subject to sale exceeds considerably the area on the register. In such a case, barring any special circumstance such as the seller’s agreement to acquire and transfer the ownership of the excess portion, the excess portion shall be considered as a sale of the right to occupation and use merely, and in such a case, the possession shall be deemed as an occupation and use by the nature of the title. According to the evidence and the witness’s testimony and appraisal results, the above Defendants knew that the part of the site in possession of the building site in the course of purchasing the building site and building owned was owned by another person, and it can be recognized that the part in possession (40㎡) of the building site in this case of Defendant Shin Pung-hee was 40% of the area on the register, and there is no counter-proof, and thus, the above Defendant’s possession has been converted into the occupation of a third party. Therefore, the above assertion is without merit

C. We examine ex officio whether the plaintiff's claim in this case constitutes an abuse of right (which goes against the principle of trust and good faith or abuse of right violates compulsory provisions, and thus the court may determine ex officio the plaintiff's claim without any assertion by the party (Supreme Court Decision 88Meu17181 delivered on September 29, 198, etc.).

In light of the above facts, if the Plaintiff’s exercise of rights only subjectively causes pain to the other party, and there is no benefit to the other party, and it can be seen that such exercise of rights is an abuse of rights. The subjective requirement for causing pain or damage to the other party can be ratified by objective circumstances, which lack legitimate interest of the right holder (see Supreme Court Decision 2003Da40422, Nov. 27, 2003, etc.). The aforementioned evidence and evidence No. 4-1 through No. 4, No. 2-1, No. 4-2, and No. 4-2, and the Defendants were installed in the building site of this case to be removed from the building site of this case to the point of view that the Defendants’ use of the building site of this case’s reconstruction without any benefit to the other party, and the Defendants’ use of the building of this case’s reconstruction and removal of the building site of this case to the extent that the Defendants did not have any inconvenience to remove the building site of this case to the owner of the building of this case.

3. Conclusion

Thus, all of the plaintiff's claim of this case is dismissed.

Judges Lee In-bok