206Na637 Removal, etc. of transmission towers

(Appointed Party)

AA

Korea Electric Power Corporation

The president shall Z.

Law Firm Doz.

Y, KK, SS

Busan District Court Decision 2005Ga71075 Delivered on November 24, 2005

July 12, 2007

August 23, 2007

1.The judgment of the first instance shall be modified as follows:

가.피고는 원고(선정당사자) 및 선정자들에게 양산시 ●●면 ■■리 산 00임야 7,934㎡ 지상에 설치되어 있는 345킬로볼트 해북 송전선로 00호 송전탑을 철거하고, 각 135,000원을 지급하라.

B. The remaining claims of the plaintiff (appointed party) and the designated parties are dismissed, respectively.

2. The total cost of a lawsuit shall be three minutes, and one of which shall be borne by the plaintiff (Appointed Party) and the designated parties, and the remainder by the defendant, respectively.

3. The above paragraph 1(a) may be provisionally executed.

1. Purport of claim

피고는 원고(선정당사자, 이하 '원고'라고만 한다), 선정자들에게 양산시 ●●면 ■■리 산 00 임야 7,934㎡ 지상에 설치되어 있는 345킬로볼트 해북 송전선로 00호 송전탑을 철거하고, 4,839,600원을 지급하라(원고는 당심에 이르러 청구취지를 감축하였다). 2. 항소취지

The part of the judgment of the court of first instance against the plaintiff and the designated parties shall be revoked. The defendant shall pay KRW 4,839,600 to the plaintiff and the designated parties.

Defendant: The part against the Defendant in the judgment of the first instance court is revoked, and all corresponding plaintiffs' claims are dismissed (the plaintiff was selected as the appointed party in the trial).

1. Basic facts

가. 양산시 ●●면 ■■리 산 00 임야 7,934㎡(이하 '이 사건 토지'라 한다)는 BBB가 1938. 1. 00. 그 소유권을 취득하였고 BBB가 1957. 4. 00. 사망하자 장남인 CCC에게 상속된 후 1981. 5. 00. DDD, EEE, FFF, GGG 등에게 소유권이전등기가 경료되었다가 원고 HHH, 선정자 AAA가 1992. 5. 0. 선정자 III, JJJ가 1992. 5. 0. 각 1/4 지분에 관하여 각 그 소유권을 취득하였다.

B. The Defendant, around June 0, 1978, set up on the land of this case a transmission tower of 345 KNNN 00 (hereinafter “the transmission tower of this case”) and owned and managed it up to the present day.

[Reasons for Recognition] A1-A5, the purport of the whole pleadings

2. Determination

A. Parts of the claim for removal

(1) According to the above facts, the defendant is obligated to remove the transmission tower of this case to the plaintiff and the designated parties (hereinafter "the plaintiff et al.") who are the owner of the land of this case, unless there are special circumstances.

(2) Judgment on the defendant's assertion

(A) On October 0, 1978, the Defendant concluded a permanent lease agreement with CCC on the instant land to install the transmission tower of the instant case. The Defendant asserted that the Plaintiff’s claim was unjustifiable since the said lease agreement succeeded to the Plaintiff, etc. who purchased the instant land thereafter.

According to the following facts: (a) the Defendant entered into a lease agreement on October 0, 1978 with the CCC, which is the owner at the time, on the instant land; (b) the rent of KRW 40,000; and (c) the lease period of the instant land is the duration of the transmission tower; (b) CCC is obligated to take measures to enable the Defendant to exercise the right of lease against a third party who acquired the instant land rights; and (c) if the damage occurs to the Defendant due to the failure of the CCC to perform the above obligations, it is recognized that the Defendant shall compensate the Defendant for damages, even though the Defendant entered into the lease agreement with CCC on the instant land with the content as above, solely on the ground that the Defendant entered into the lease agreement with CCC and the third party who acquired the ownership of the instant land, the Plaintiff et al. succeeds to the said lease agreement or the Defendant cannot set up against the Plaintiff et al. under the said lease agreement. Therefore, the Defendant

(B) Next, the defendant asserts that the plaintiff et al. acquired the land of this case with the knowledge that the transmission tower existed before acquiring the ownership of the land of this case, that the plaintiff et al. purchased the land of this case with the knowledge that the transmission tower and the transmission line occupy the land of this case, that the plaintiff et al. purchased the land of this case to use the land of this case for the above purpose, and that the plaintiff et al. does not completely interfere with the transmission tower in using the land of this case for the above purpose, and that the removal of the transmission tower of this case requires several hundred million won, and that the removal of the transmission tower of this case requires a large amount of damage to the factories, houses, etc. being supplied with electricity using the transmission tower of this case, while considering that there is little profit to the plaintiff et al. due to the removal of the transmission tower of this case, the claim for removal of the transmission tower of this case by the plaintiff et al. of this case constitutes an abuse of rights.

In order for the exercise of the right to be an abuse of the right, subjectively, the purpose of the exercise of the right is 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, and unless it does not fall under such cases, even if there is a significant damage to the other party than the benefit that the exercise of the right gains by the exercise of the right, such circumstance alone does not constitute abuse of the right.

However, even if the Plaintiff et al. acquired the land of this case with the knowledge of the fact that the power transmission tower was installed on the land of this case and connected to the power transmission tower, there was no long-term objection from the land owners, and the Plaintiff et al. was well aware of the fact that the power transmission tower was installed on the land of this case or near the land of this case, it cannot be deemed that the Plaintiff et al. impliedly allowed the use of the land of this case or allowed the exercise of the ownership of this case to be limited (see Supreme Court Decision 200Da65246, Feb. 23, 201). ① The Plaintiff et al. cannot be deemed to have obtained unfair profits from the Defendant using the land of this case or to have suffered suffering from the Defendant, and ② the Plaintiff et al., even after acquiring the ownership of the land of this case, the Plaintiff et al. did not remove the land of this case by consultation about the use of the land of this case on the ground of the lease contract with the previous owner, and thus, it cannot be deemed that the land of this case was removed (see 4).

B. Determination of unjust enrichment claim

Meanwhile, according to the above facts, the Defendant owned the instant transmission tower and the power transmission line on the instant land, and possessed the site and do not do so. As such, the Plaintiff, etc., the owner of the instant land, as the Plaintiff, etc. sought from July 00, 2005, is obligated to return the amount equivalent to the usage profit for the period of ten years as unjust enrichment.

원고는, 이 사건 토지 중 송전탑 부지 및 선하지를 제외한 나머지 토지 부분에 관하여도 피고의 점유사용을 이유로 부당이득반환을 구하나, 피고가 위 나머지 토지 부분도 점유사용하고 있다고 볼 증거가 없으므로, 원고의 이 부분 주장은 이유 없다. 나아가 피고가 반환하여야 할 부당이득의 액수에 관하여 살피건대, 통상의 경우 부동산의 점유사용으로 인한 이득액은 그 부동산의 차임 상당액이라 할 것인바, 다툼 없는 사실, 이 법원의 감정인 주식회사 ★★ 감정평가법인에 대한 감정촉탁결과, 변론 전체의 취지에 의하면, 1995. 8. 0.부터 2005. 7. 00.까지 이 사건 송전탑 부지의 차임 합계액은 80,000원, 송전선 선하지의 차임 합계액은 460,000원인 사실을 인정할 수 있고, 한편 원고 등이 이 사건 토지를 각 1/4의 지분으로 소유하고 있음은 앞서 본 바와 같으므로, 피고가 원고 등에게 반환하여야 할 부당이득의 액수는 이 사건 송전탑 부지 및 송전선 선하지에 대한 부당이득 합계 540,000원(80,000원 + 460,000원)을 원고 등의 각 지분 비율로 나눈 금액이 된다.

3. Conclusion

Thus, the defendant is obligated to remove the transmission tower of this case to the plaintiff and the designated parties, and pay 135,000 won (540,000 won X1/4) for unjust enrichment from possession and use of the site of the transmission tower of this case and the power transmission line. Thus, the plaintiff and the designated parties of this case's claim of this case are justified within the scope of the above recognition, and the remaining claims are dismissed as it is without merit. The judgment of the court of first instance is unfair in conclusion, and it is decided to accept part of the appeal by the plaintiff and the designated parties and to revise the judgment of the court of first instance as above.

The presiding judge, judge and associate judge;

Judges, Clinicals

Judges Shin Jae-sung