[1] The requirements for the prescriptive acquisition of traffic area

[2] In cases where the owner of real estate changes during the occupancy period, the method of recognizing the starting point of the acquisition by prescription / Where the possession is succeeded in succession, whether the claimant for the completion of the acquisition by prescription has the right to assert only his/her own possession or, at the same time, his/her own possession and possession (affirmative) and whether the above legal principle likewise applies to the acquisition by prescription of traffic area (affirmative)

[3] Requirements for exercise of right to constitute abuse of right

[4] Whether the owner of a dominant estate shall compensate for the damages suffered by the owner of a dominant estate due to the construction and use of a road on the dominant estate in case where the right of passage has been acquired by prescription (affirmative in principle)

[1] Articles 245, 291, and 294 of the Civil Act / [2] Articles 245 and 294 of the Civil Act / [3] Article 2 (2) of the Civil Act / [4] Articles 219, 291, and 294 of the Civil Act

[1] Supreme Court Decision 95Da1088 and 1095 decided Jun. 13, 1995 (Gong1995Ha, 2393), Supreme Court Decision 2001Da8493 decided Apr. 13, 2001 (Gong2001Sang, 1138) / [2] Supreme Court Decision 94Da3987 decided May 23, 1995 (Gong1995Ha, 2228), Supreme Court Decision 97Da5682 decided Apr. 10, 1998 (Gong198Sang, 1304) / [3] Supreme Court Decision 2002Da22083, 22090 decided Sept. 4, 2002; Supreme Court Decision 2003Da23839 decided Mar. 23, 2015

Nebio, Inc. and three others (Law Firm TELBS et al., Counsel for the plaintiff-appellant)

Sejong Steel Co., Ltd. (Law Firm Dakel, Attorneys Choi Wo-ro et al., Counsel for the plaintiff-appellant)

Seoul Eastern District Court Decision 2011Na1158 decided January 13, 2012

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

The grounds of appeal are examined.

1. As to the ground of appeal on the completion of the prescriptive acquisition of traffic area

A. The provision of Article 245 of the Civil Act on the prescriptive acquisition shall apply mutatis mutandis only to a right to use another person’s land’s land’s convenience for a certain purpose, as a right to use it, and only if it is continued and expressed for a certain purpose, and the owner of the dominant estate establishes a road on the dominant estate and uses it on the dominant estate for the benefit of the dominant estate and continues to use it for the benefit of the dominant estate, the servitude can be recognized by prescription (see, e.g., Supreme Court Decisions 95Da1088, 1095, Jun. 13, 1995; 2001Da8493, Apr. 13, 2001).

In addition, when calculating the period of prescriptive acquisition, if the owner of the relevant real estate changes during the period of possession, the person who asserts the period of prescriptive acquisition cannot assert the period of prescriptive acquisition on the ground that he/she arbitrarily selected the starting point of reckoning or occupied for not less than 20 years retroactively, and the court recognizes the starting point of real possession as recognized by the litigation data without seeking a party’s assertion, and the propriety of the claim for the prescriptive acquisition should be determined on the basis of such recognition (see, e.g., Supreme Court Decision 94Da3987, May 23, 1995). On the other hand, where the possession is succeeded in succession, the person who asserts the completion of the period of prescriptive acquisition has the right of choice to assert only his/her own possession, or to assert both his/her own possession and possession (see, e.g., Supreme Court Decision 97Da56822, Apr. 10, 198). The above legal doctrine on the prescriptive acquisition of ownership also applies mutatis mutandis to the provision of the right to passage.

In addition, the court determines the origin of facts with free conviction in accordance with logical and empirical rules, based on the principle of logic and experience, taking into account the overall purport of pleadings and the outcome of the examination of evidence, so long as it does not exceed the bounds of the principle of free evaluation of evidence, the value judgment and fact-finding belong to the discretion of the fact-finding court, and the fact-finding court is duly affirmed (Articles 202 and 432 of the Civil Procedure Act).

B. The court below rejected the Defendant’s assertion that: (a) since Hanyang Co., Ltd. (hereinafter “ Hanyang”) established the passage of this case around 1985, the Defendant continued to use the passage of this case after acquiring the land for this case from Hanyang on or around December 2001; and (b) the time when the Plaintiff Co., Ltd., Ltd. and Plaintiff 2 and the Nonparty acquired each co-ownership share on the 1 and 2 land of this case, on or before the end of 2005, the prescriptive acquisition of the passage of the passage of this case on the 1 and 2 land was completed; and (c) the Defendant’s assertion that the passage of this case cannot be acquired by prescription since the Defendant occupied the passage of this case without permission since it occupied the passage of this case on or around the end of 2005; and (d) the Defendant’s assertion that the passage of this case cannot be acquired by prescription on the grounds that it did not constitute an acquisition by prescription under Article 294 of the Civil Act.

C. Unlike the judgment of the court below, the ground of appeal disputing the opening time of the passage of this case and asserting the change of ownership of the land Nos. 1 and 2 before the lapse of 20 years after the establishment on the premise thereof is merely an error in the selection of evidence and the determination of the value of evidence and the fact-finding based thereon, which belong to the free trial by the fact-finding court. In addition, in light of the records, including the evidence duly admitted, the examination of the reasoning of the court below does not err in the misapprehension of legal principles as to the starting point of acquisition, the change of the owner before the completion of the prescriptive acquisition, the succession to the possession of the prescriptive acquisition, and the lapse of the possession period, or omitting the necessary deliberation, as alleged in the ground of appeal.

In addition, in light of the aforementioned legal principles, insofar as the passage of this case was opened on the land Nos. 1 and 2 in Hanyang, and the objective situation where the passage of this case continued to be used for the convenience of Korea and the land for the factory in this case owned by the Defendant was expressed for not less than 20 years, it may be deemed that the passage of this case may continue to be established and used as the passage of this case as a traffic zone that restricts the ownership of the passage of this case, and thus, it can be seen as satisfying all the requirements for the prescriptive acquisition of traffic zones. Accordingly, the court below’s rejection of the Plaintiffs’ assertion on the ground of unauthorized occupation is insufficient in the reasoning of the judgment below, but it is insufficient to deny the prescriptive acquisition of traffic zones, and there is no error of law by misapprehending the legal principles on the requirements for the prescriptive acquisition of traffic zones by applying Article 245 of the Civil Act mutatis mutandis, contrary to what is alleged in the grounds of appeal

2. As to the ground of appeal on abuse of rights

In order for the exercise of the right to be an abuse of the right, a subjective purpose of the exercise of the right must be to inflict pain and damage on the other party, and there should be no benefit to the person who exercises the right, and objectively, the exercise of the right should be deemed to be in violation of social order. If the exercise of the right does not fall under such a case, even if the damage suffered by the other party is remarkably high than the benefit the person has gained by the exercise of the right, such circumstance alone does not constitute an abuse of the right (see Supreme Court Decision 2002Da22083, 22090, Sept. 4, 2002).

The purport of this part of the ground of appeal is that the defendant who succeeded to the factory site of this case is an abuse of rights or a violation of the principle of good faith to claim removal of roads under the Nos. 1 and 2 of this case on the ground that it acquired the right of passage by continuously using the road of this case without securing a separate passage, although he could easily know the fact that the owner of land Nos. 1 and 2 of this case is the plaintiffs at the time of acquiring the factory site of this case. However, in light of the above legal principles, the above circumstance alone does not constitute abuse of rights or the

3. As to the ground of appeal on the payment of consideration

However, barring any other circumstance, it is necessary to properly protect the owner of a servient tenement as to disadvantages arising therefrom, on the ground that the period of existence of a road is not limited, barring any special circumstance. Meanwhile, the prescriptive acquisition of the passage area is premised on the objective condition that the owner of a servient tenement constructed on the servient tenement, and thus, is always subject to the obligation to pay rent for the use thereof before the prescriptive acquisition is completed or the obligation to return unjust enrichment is imposed. Article 219 of the Civil Act provides that the prescriptive acquisition of the passage area may take place on the premise of the construction and use of the road. In addition, where the owner of the land does not have a passage between the land and the public road, the owner of the surrounding land cannot have access to the surrounding land without the passage of the surrounding land or the public road, or the owner of the surrounding land needs to exercise his/her right to access the land without the passage of the surrounding land or the right to use the surrounding land, and the right to use the surrounding land can be established under the nature of the passage area to compensate the owner of the land.

In full view of various circumstances on the prescriptive acquisition of traffic zones recognized as permanent traffic zones based on the use of roads as well as similaritys with the passage rights of surrounding land, it is reasonable to interpret that the owner of the dominant estate should compensate for damages sustained by the owner of the dominant estate due to the construction and use of the roads in the case of the right to passage over surrounding land even in cases where the use of the former dominant estate has been achieved without compensation, unless special circumstances exist, such as the acquisition of the passage rights.

Nevertheless, the lower court rejected the Plaintiffs’ claim against the Defendant, who acquired the passage area by prescription on the ground that there was no express or implied agreement between the parties on the price of the passage area, as well as the claim against the Defendant who acquired the passage area by prescription, for the sake of the following reasons: (a) the passage area and the right to passage of surrounding land vary in its nature; and (b) the passage area should not be applied to the passage area by analogy; and (c) at the time of the establishment of the passage area by this case, there was an error of law by misapprehending the legal doctrine on the price of the passage area acquired by prescription and the compensation for damages arising therefrom, thereby affecting the conclusion

4. Conclusion

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

Justices Kim So-young (Presiding Justice)