2014Da3245 Compensation for damages

A

B

Gwangju District Court Decision 2013Na7833 Decided December 13, 2013

September 15, 2015

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

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

1. When the original owner of the land sells the land by dividing it into a road, the original owner of the land may not exercise exclusive and exclusive rights to use and benefit from the land, if he/she grants a right to use and benefit from the land to neighboring residents or the general public without compensation. In addition, it is reasonable to deem that the original owner of the land waives his/her exclusive and exclusive rights to use and benefit from the land by providing a part of the land as above to the road, and that the neighboring residents or the general public have acquired the ownership of the land by auction, sale, payment in substitutes, etc. after he/she passes the land without compensation. Thus, it is reasonable to deem that he/she acquired the ownership of the land, at least after he/she consented to the circumstance that the restriction on use and benefit is imposed on the land provided as the road (see, e.g., Supreme Court Decisions 97Da52844, May 8, 1998; 2009Da82162, Jun. 11, 2009).

2. However, on the grounds as indicated in its reasoning, the lower court determined that (1) from around December 28, 1978, F provided the road of this case 49.3 square meters (hereinafter referred to as “road of this case”) to the public without compensation, and that the Defendant purchased the road of this case from F on August 4, 2011 with knowledge that it is a limitation on use and profit-making, and that the Plaintiff has the right to free access to the road of this case (2) in light of general legal principles on the right to free access to surrounding land, the scope of the Plaintiff’s right to free access is limited to the right to passage of the road of this case, and it does not recognize that the Plaintiff’s exclusive access to the road of this case is limited to the Plaintiff’s right to use and profit-making, and that the Defendant’s temporary parking of the vehicle of this case cannot be deemed as infringing the Plaintiff’s exclusive right to use and profit-making on the road of this case, and rejected the Defendant’s exclusive right to use and profit-making from the road of this case.

Therefore, if it is recognized that the Defendant interfered with the passage of the Plaintiff’s vehicle on the road of this case by intentionally parking the vehicle on the road of this case, this constitutes an infringement on the Plaintiff’s right of free passage, and thus, the Defendant should compensate for the damages incurred therefrom to the extent that proximate causal relation exists.

4. Nevertheless, the court below held otherwise as to the scope of the Plaintiff’s right of passage on the road of this case.

The court below rejected the claim for damages of this case by making decisions contrary to the above Supreme Court precedents. Accordingly, the judgment of the court below has a ground for violation of Article 3 subparagraph 2 of the Trial of Small Claims Act. The ground for appeal pointing this out is with merit.

5. 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 Jae-young

Justices Lee In-bok

A person shall be appointed.