Whether it is permissible for an owner to waive the right of use and profit belonging to the core competence of ownership (negative in principle) / In a case where private land is used as a road for the traffic of the general public, whether the landowner has understood that he/she would waives the right of use and profit or would not temporarily exercise his/her ownership in relation to the persons who have been provided as a site for a road (affirmative in principle), and the standard for determining whether the landowner may be deemed to have renounced the right of use and profit at this time.

Unless there are special circumstances, it is not permissible for an owner to waive the right of use and profit belonging to the core functions of ownership in a large scale. This is because only the disposal authority creates a new type of ownership that remains. Therefore, in a case where a private land is used as a road for the traffic of the general public, even if a land owner voluntarily provides a part of the land as a road site, barring special circumstances, it should be understood that the landowner would not waive the right of use and profit or temporarily exercise the right of use and profit in relation to the person who has been provided as a road site, rather than to waive the right of use and profit.

In such a case, in interpreting the intent that the landowner renounces the right to use and profit-making, the following should be carefully considered: (a) the details and period of ownership of the land; (b) the details and scale of selling the remaining land by installments; (c) the location and nature of the land to be used as the road; (d) the relationship with neighboring land; and (e) the surrounding environment; and (e) the degree of contribution to the land for the effective use and profit-making of the remaining

Articles 185, 211, and 741 of the Civil Act

Supreme Court Decision 2005Da31736 Decided May 12, 2006 (Gong2006Sang, 1030) Supreme Court Decision 2009Da228, 235 Decided March 26, 2009 (Gong2009Sang, 571)

Plaintiff (Counterclaim Defendant) (Law Firm New Ratio, Attorney Kim Tae-il, Counsel for plaintiff-appellant)

Busan District Court Decision 2006Na11448 delivered on August 2, 200

Seoul Southern District Court Decision 2016Na58657, 58664 decided January 20, 2017

The appeal is dismissed. The costs of appeal are assessed against the Defendant (Counterclaim Plaintiff).

The grounds of appeal are examined.

1. The Supreme Court Decision 2009Da228, 235 Decided March 26, 2009, etc.) is contrary to the legal principle of real rights under the Civil Act, barring any special circumstances, barring any special circumstance, to allow a landowner to waive the right of use and profit, belonging to the core power of ownership. If a private land is used as a road for the general traffic of the general public, barring any special circumstance, even if the landowner voluntarily provides a part of the land as a road site, it should be deemed that the landowner does not waive the right of use and profit, or does not temporarily exercise its ownership, in relation to the person who is provided as a road site without compensation, rather than to waive the right of use and profit, barring any special circumstance.

In interpreting the intent that a landowner renounces his/her right to use and profit from the land, the following should be carefully determined by comprehensively considering the following: (a) the details and period of ownership of the land; (b) the details and scale of selling the remaining land in installments; (c) the location and nature of the land used as the road; (d) the relationship with neighboring land; and (e) the degree of contribution to the land for the effective use and profit from the remaining land partitioned and sold (see, e.g., Supreme Court Decision 2005Da31736, May 12, 2006).

2. Review of the lower judgment and the record reveals the following facts.

A. On December 5, 1968, the non-party purchased the land of Jeonsung-gun ( Address omitted) including the instant land, and completed the registration of ownership transfer on January 27, 1969.

B. Around 1971, the Defendant (Counterclaim Plaintiff; hereinafter “Defendant”) opened a narrow road adjoining the above (location omitted) land. On August 24, 1971, the instant land was partitioned from the above (location omitted) land, and its land category was changed from “the road” to “the road.” From around that time, the Defendant used the instant land as a road while managing the instant land.

C. Regarding the instant land, around June 24, 1971, the Defendant’s report on non-taxation (the non-taxation report, the land on which no tax is levied is listed) was entered in the Defendant’s report on non-taxation, and no tax was imposed around that time.

D. The Plaintiff (Counterclaim Defendant; hereinafter “Plaintiff”) registered the ownership transfer on April 19, 2012 on the instant land due to inheritance due to a consultation division held on October 31, 2010, following the Non-Party’s death.

3. The lower court determined that the Nonparty could not be deemed to have renounced the exclusive right to use and benefit from the instant land solely based on the Defendant’s assertion, including the fact that a non-taxation report was filed with respect to the instant land as above and that no tax was imposed.

Examining the legal principles as seen earlier and the facts indicated in the record, in particular, there are no materials to deem that the Nonparty reported non-taxation regarding the instant land, the lower court’s conclusion is acceptable. However, the lower court did not err in its judgment by failing to exhaust all necessary deliberations, contrary to what is alleged in the grounds of appeal, by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or by misapprehending the legal doctrine

4. The Defendant’s appeal is dismissed as it is without merit, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Poe-young (Presiding Justice)