2020Da246630 Requests for removal of roads and delivery of land, etc.

Plaintiff:

Kim Jong-si

Changwon District Court Decision 2019Na53058 Decided June 11, 2020

January 14, 2021

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

The grounds of appeal are examined.

1. Legal principles on the waiver of a landowner’s exclusive, exclusive, and beneficial rights

Where a landowner has provided his/her land to the general public, such as a road and a site reserved for a water supply facility, he/she shall comprehensively consider various circumstances such as the details and period of holding the land owner's possession, the details and scale of the land owner's provision of the land for the public use, the existence of the owner's interest or benefits from the provision of the land, the location or form of the relevant part, the relationship with the neighboring land, the surrounding environment, etc., and as a result, a comparative balancing between the guarantee of the landowner's ownership and the public interest, if the owner may be deemed to have waived his/her exclusive and exclusive right to use and use the land, the land may not be deemed to have caused any damage to the landowner, barring special circumstances. Thus, the landowner cannot file a claim for return of unjust enrichment against the other party, and may not seek the delivery of the land.

In addition, it is reasonable to deem that a person who specifically succeeds to the ownership of land, the exercise of the exclusive/exclusive/exclusive/exclusive/exclusive/exclusive right to benefit by auction, sale, payment in substitutes, etc. of the original owner, barring any special circumstance, has acquired the ownership of such land with knowledge that there is a burden on the restriction of use or profit-making. As such, such specific successor cannot exercise exclusive/exclusive/exclusive/exclusive right to use or profit-making right to the part of the land. Whether there is any special circumstance to allow a specific successor to exercise exclusive/exclusive/exclusive/exclusive/exclusive right to use the land should be determined by comprehensively taking into account the following factors: (a) whether a specific successor has indicated the land to a certain extent in the external appearance through the process and purpose of acquiring the land; (b) whether the property decline due to the restriction on the exercise of the right to use or profit-making right to use the land was reflected in the acquisition value of the land in question; and (c) if the original owner has a special relation to the provision of the land to the public without compensation to the general public, it should be determined by comprehensively considering various factors such impact.

2. The judgment of the court below

A. The lower court acknowledged the following facts.

1) Around September 1996, the Plaintiff purchased (number 1 omitted), 2,569 meters (hereinafter referred to as “land prior to subdivision”) and completed the registration of ownership transfer. The land prior to subdivision was divided into a square meter of (number 1 omitted) 2,402 square meters and (number 2 omitted) 167 square meters, and (number 2 omitted) 167 square meters on the same day (number 2 omitted). The land category was changed to a road and the land category was 167 square meters (hereinafter referred to as “real estate in this case”). The real estate in this case was divided and land category was changed as follows.

2) From 1948 to 1948, the width of the instant real estate was narrow. However, as part of the Saemaul Project around 1980, the “Road Access Road and Village Improvement Project” was implemented, the instant real estate was extended to the instant real estate. The instant real estate was used as the passage of neighboring land owners and residents from around that time.

3) On September 196, 196, after the Plaintiff acquired the Plaintiff’s ownership, the Defendant completed a survey of dividing the individual land already incorporated into the above “entry Road and Village Improvement Project, including the instant real estate, and on October 196, applied for land category change by subrogation around October 1996, and around that time, the Defendant occupied and managed the portion (B) 134 (hereinafter “the occupied portion”) of the instant real estate, which connects each point of indication 1, 2, 3, 4, 5, 6, 7, 8, 16, 15, 14, 13, 12, and 1 as indicated in the judgment of the court below, among the instant real estate.

4) Meanwhile, around May 200, the Plaintiff sold (number 1 omitted) 2,402 square meters to the Nonparty, except for the portion of land category changed as above, and completed the registration of ownership transfer by selling (number 1 omitted) land (number 1 omitted) to a factory site around July 200, and then sold to another person again around 202.

5) The real estate in this case is in the shape that is long and its width is narrow independently. The road passing through the real estate in this case is not designated as a Si/Gun, but is used as a route leading to nearby villages and leading to village or Gun roads from nearby factories.

B. After finding the above facts, the court below rejected the defendant's defense that "the plaintiff who specifically succeeded to the real estate of this case where the owner gave up exclusive, exclusive, and beneficial rights to use the real estate of this case was also limited to the exercise of exclusive, exclusive rights to use the real estate of this case," and accepted all the plaintiff's claim, such as the delivery of the real estate of this case and the claim for return of unjust enrichment, on the ground that it is highly likely that the land of this case would have been developed as a factory site at a high price corresponding to the above land at the time when the land was sold to the non-party, because the land of this case was adjacent to the road of a considerable width."

3. Judgment of the Supreme Court

However, examining the facts acknowledged by the court below in light of the aforementioned legal principles, the court below should comprehensively consider the following: (a) details and period of ownership of the real estate in this case; (b) details and size of provision of use to the public; (c) details and form of provision of use to the public; (d) relationship with neighboring land; and (e) balance between ownership guarantee and public interest; and (e) whether the real estate in this case may be deemed to have waived exclusive, exclusive, and beneficial rights; and (b) if the real estate in this case was purchased and owned by the plaintiff, which was the waiver of exclusive, exclusive, and beneficial rights; (c) whether the real estate in this case was indicated to a certain extent in its appearance through the current status and category of use; and (d) whether there was a property decline due to the restriction on the exercise of rights to use and benefit; and (e) whether the portion of the road was divided immediately after the acquisition of the Plaintiff’s ownership; and (e) whether the remaining land owned by the Plaintiff had any special relation with the Plaintiff’s exercise of exclusive rights to the land in this case.

Nevertheless, without examining and determining the above circumstances, the lower court concluded that the Plaintiff or the former owner of the instant real estate cannot be deemed to have renounced the exclusive, exclusive, and beneficial rights to the instant real estate on the sole ground that it is difficult to deem that the land owner provided the instant real estate on his own as a road or that it was intended to obtain a larger usefulness by providing it, and that the Plaintiff or the former owner of the instant real estate cannot be deemed to have renounced the exclusive, exclusive, and beneficial rights to the instant real estate. In so doing, the lower court erred by misapprehending the legal doctrine on the waiver of exclusive, exclusive, and beneficial rights to use, and failing to exhaust all necessary deliberations, which affected

4. Conclusion

The lower judgment is reversed without further proceeding to decide on the remaining grounds of appeal, 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.

Supreme Court Decision 201

Justices Kim Jae-in

Justices Min Il-young in charge

Justices Lee Jae-hwan