(영문) 대법원 2015.2.26.선고 2012다280 판결

The part of the judgment of the court below regarding the claim for removal against Defendant Lonedo Construction Co., Ltd. is reversed, and that part of the case is remanded to the Seoul High

All of the appeals by the Korea Intellectual Property Corporation, by the Sungnam City, and by the remaining appeals by Defendant Ldo Construction Co., Ltd. are dismissed.

The costs of appeal against Defendant Korea Cadastral Corporation and Sungnam-si are assessed against the Plaintiff.

Reasons

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

1. As to the ground of appeal on the claim for removal against Defendant Lonedo Construction Co., Ltd.

A. The boundary restoration surveying conducted to restore a boundary on the cadastral map as a matter of whether a boundary is invaded or not shall be conducted according to the method of surveying as at the time the boundary is registered on the cadastral map and based on the cadastral control point or base point at the time of the surveying (see, e.g., Supreme Court Decision 2010Da11606, 11613, Jul. 12, 2012). In cases where a sectional surveying was conducted by the plane table surveying based on the base point at the time of land registration, in principle, based on the base point at the time of registration. However, if the boundary restoration surveying cannot be conducted based on the base point at the time of registration because it was impossible to find the base point at the time of registration at the time of registration, the boundary restoration surveying can be conducted based on the surrounding base point at the time of registration on the basis of the boundary restoration map at the time of registration, and if the boundary restoration surveying was conducted by the said method due to changes in the situation of land at issue, the boundary restoration surveying can be found based on the boundary point at issue 170.

B. Based on the adopted evidence, the court below acknowledged that, on September 30, 2003, a survey technician 1 belonging to the Korea Cadastral Survey Corporation (hereinafter "Defendant Ldo Construction") conducted a boundary restoration survey (hereinafter "the boundary restoration survey of this case") on the land at the request of Defendant Ldo Construction Co., Ltd. (hereinafter "Defendant Ldo Construction"), Sungnam-si, 851.9m (hereinafter "E land"), unlike the previous survey, the current status of E land was 30 cm in the direction of Cand 262.1m (hereinafter "Plaintiff's land") owned by the Plaintiff and the scope of the Plaintiff's land was back to the road, and there was no difference between the table value on the boundary line of the Plaintiff's land and the actual land boundary line on the ground that the appraisal result was not installed on the ground of the lack of appraisal value on the ground that the appraisal result was installed on December 29, 2004, and there was no error in the Plaintiff's land boundary restoration.

C. However, the lower court’s determination is difficult to accept for the following reasons.

1) Where the boundary restoration surveying is conducted by an appropriate method of surveying as seen earlier, as well as where the method of surveying is mistakenly selected or erroneous in the selection of a cadastral control point or a flag point which is the basis of such surveying, the results of surveying are different. As stated in the lower court, if the boundary restoration surveying does not take place, or if the boundary control point which is the basis at the time of the boundary restoration surveying in this case is erroneous, it is highly likely that there is an error in the relevant surveying results.

2) Furthermore, according to the evidence and records duly adopted by the lower court, the following circumstances are revealed.

A) At the time of the instant boundary restoration surveying conducted on September 30, 2003, the Do points based on this standard were L, 0, and Z.

B) However, while the coordinate value of Ldoz points listed in the boundary restoration surveying map (Evidence No. 7-3) is “X=1097.57, Y=9530.21, Ldoz points and cadastral map (Evidence No. 16-3), Ldoz points are indicated differently in the coordinate value, which is installed on December 29, 2004 in the same Gu AB Dong, other than Sungnam-si, AAdong, and is indicated in the table of cadastral map No. 200, 2006, which is the coordinate value of the Kdoz points located in AA Dong, and the coordinate value used by the defendant Intellectual Property Corporation is against the 500,000,000,0000,0000,0000,0000,0000,0000,0000,0000,000,0000,000,000,000).

C) In addition, while the coordinate value of this Do point indicated in the above boundary restoration surveying map is X=1048.10, Y=9537.19, Zdo point is 'X-195.41, Y=95.49', the coordinate value of Zdo point is 'X-195.41, Y=95.49, Y-916.49, the land of this Do point is again indicated in the cadastral map restoration point of this case which was applied to the cadastral map of this case from October 6, 1997 to October 1, 2004, and the land of this case was again indicated in the cadastral map restoration point of this case 'X-104.44, Y-937.48, Z point of this case', the land of this Do point was again indicated in the cadastral map restoration point of this case which was applied to the cadastral map restoration point of this case.

3) In light of the aforementioned circumstances, it is difficult to readily conclude that the deliberation by the lower court was conducted solely on the basis of the fact that all of the design points used as the standard at the time of the instant boundary restoration surveying or that the coordinate value was applied evenly.

Meanwhile, Article 44(1)1, (2), and (3) of the former Enforcement Decree of the Cadastral Act (amended by Presidential Decree No. 20722 of Feb. 29, 2008) and Articles 59(2), and 60(2) of the former Enforcement Rule of the Cadastral Act (repealed by Ordinance No. 191 of Dec. 14, 2009) provide that the competent authority shall manage the cadastral root performance, and the competent authority shall publish the name and number of the cadastral supplementary points, the coordinates, the location and the date of survey, and the place of survey in the official gazette, and shall record and manage certain matters, such as the number and location map.

Therefore, even before the inspection by the competent authority on October 6, 2003, which was conducted on September 24, 2003, the lower court may apply to the boundary restoration survey of this case even if the coordinate value of the above Do points applied after re-establishment on September 24, 2003, and the fact that the survey was conducted by the competent authority on October 6, 200, whether the boundary restoration survey of this case can be applied to the boundary restoration survey of this case, and if the above Do points were to be published in the Official Gazette, whether the cadastral engineer AC was the Do points that were in fact recorded and managed on the cadastral map, whether the cadastral engineer was re-established on September 24, 2003, and if the Gun surface points were to be confirmed on September 24, 2003, it should have been examined again on October 1, 204, whether the boundary restoration standard of this case was the basis for the boundary restoration of this case, and whether the examination of this case can be applied to the boundary restoration.

Nevertheless, the lower court rejected the Plaintiff’s claim for this part solely for the reasons indicated in its reasoning. In so determining, the lower court erred by misapprehending the legal doctrine on cadastral and land surveys, thereby failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment. The allegation in the grounds of appeal assigning this error is with merit.

D. Meanwhile, the Plaintiff asserted that the boundary line between W land and E was reduced because the Plaintiff did not properly perform the peripheral area in the course of computerization of cadastral map, and that there was a mistake which was surveyed by using a light map that was not properly conducted when the boundary restoration survey of this case was conducted, and that the lower court determined that there was no dispute between the parties regarding the use of a light map that was not conducted when the boundary restoration survey of this case was conducted.

However, according to the records, the drawings Nos. 17 and 21 of the AAdong cadastral map with the land of the plaintiff and the above land were converted to the computerized drawing on December 17, 2004. In light of the above, the plaintiff's assertion that when the boundary restoration survey of this case was conducted on September 30, 2003, it cannot be established that the plaintiff used the electronic drawing which was not properly performed at the time of the boundary restoration survey of this case. In addition, the plaintiff's statement was made as if the plaintiff had attempted to contact because the boundary line was set on the boundary line on the boundary restoration map of this case, or it appears that he would have used the similar map. Accordingly, the court below should clarify the purport of this part of the plaintiff's assertion by exercising the right to request the name and point out.

2. As to the grounds of appeal on the claim for damages equivalent to the rent for Defendant LAD Construction, the lower court, based on its stated reasoning, deemed that it was difficult to deem that the lease of the Plaintiff’s building was impossible due to the destruction by Defendant LAD Construction. Examining the reasoning of the lower judgment in light of the records, the lower court did not err in its judgment by misapprehending the legal doctrine on proximate causal relation with compensation for business suspension damages in the event a business article is damaged, contrary to what is alleged in the grounds of appeal. The Supreme Court decision cited in the

3. As to the grounds of appeal on the claim of consolation money against Defendant Ldo Construction, the lower court, based on the adopted evidence, determined that the facts in its reasoning are insufficient to recognize that the Plaintiff suffered inconvenience or mental suffering to the extent that the Plaintiff exceeded the tolerance limit due to non-compliance with the separation distance of Defendant Ldo Construction. In light of the relevant legal principles and records, the lower court’s aforementioned determination is just and acceptable, and contrary to what is alleged in the grounds of appeal, there were no errors by misapprehending the legal principles

4. As to the grounds of appeal on the claim for damages due to joint tort against the defendant, the Korea Intellectual Property Corporation, and the Sungnam City

For the reasons indicated in its reasoning, the lower court determined that it was insufficient to recognize that Defendant Korea Intellectual Property Corporation and Defendant Sungnam-si are liable for joint tort with respect to the destruction of the Plaintiff’s building by Defendant Datdo Construction.

In light of the above legal principles and records, even if the result of the erroneous survey was derived due to the error of I in the boundary restoration surveying of this case, it is difficult to view that there exists a proximate causal relation between the land boundary restoration surveying of this case, the damage of the plaintiff's building of Dado Construction, or the damage claimed by the plaintiff, even if the result of the erroneous survey was derived in light of the aforementioned legal principles and records.

Therefore, the plaintiff's claim for this part of the plaintiff's claim against Sungnam and Sungnam under the premise that there is a proximate causal relationship between the error in the survey of the defendant Cho Nam-si and the damage claimed by the plaintiff cannot be accepted without further review, as to whether there is an objective co-ownership relationship between the act of damage to the defendant Cho Nam-si and the act of damage to the defendant Kudodo Construction.

Therefore, the conclusion of the lower court that rejected the Plaintiff’s claim against the Defendant Korea Intellectual Property Corporation and the Defendant Sungnam-si is justifiable. In so doing, contrary to what is alleged in the grounds of appeal, there were no errors by misapprehending the legal principles on cadastral and survey-related statutes or joint tort,

5. The ground of appeal on the claim for damages due to unlawful approval of use of the defendant's right to Sungnam-si is only asserted in the supplemental appellate brief not timely filed by the plaintiff, and this part of the ground of appeal cannot be a legitimate ground of appeal.

6. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal relating to the request for removal of Defendant Ddo Construction, the part concerning the request for removal of Defendant Ddo Construction among the judgment below is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. All appeals against Defendant Dental Corporation, Sungnam-si, and the remaining appeals against Defendant Ddo Construction are dismissed. The costs of appeal against Defendant Dental Corporation and Sungnam-si are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.