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The judgment below
The part concerning Defendant B shall be reversed, and this part of the case shall be remanded to the Gwangju District Court.
Reasons
The grounds of appeal are examined.
1. As to the grounds of appeal against Defendant Ydo-gun, where a landowner provided the land owned for the purpose of general public, such as a road, the following are comprehensively considered: (a) the details and period of holding the land; (b) the details and scale of the land owner’s provision of the land to the public; (c) the existence of the owner’s interests or benefits from the provision of the land; (d) the location or form of the relevant part of the land; (e) the relationship with neighboring land and surrounding environment; and (e) the comparative balancing between the land owner’s ownership guarantee and the public interests. If the owner is deemed to have waived the exclusive right to use and benefit from the land, the land is occupied and used by another person
Even if there are no special circumstances, the land owner cannot be deemed to have suffered any loss due to the land owner’s failure to file a claim for return of unjust enrichment against the other party, and the transfer of land cannot be claimed.
(see Supreme Court en banc Decision 2016Da264556, Jan. 24, 2019). Moreover, it is reasonable to deem that a person who specifically succeeds to the ownership of land, the exercise of the exclusive use right of which by the original owner is restricted, by auction, sale, payment in substitutes, etc., was aware of the burden of restricting such use and profit-making, or that he/she acquired the ownership of the land at least by acquiring the ownership of the land, barring any special circumstance. Therefore, such specific successor is prohibited from exercising the exclusive and exclusive use right of the land.
(see, e.g., Supreme Court Decision 2011Da63055, Nov. 14, 2013). The lower court acknowledged the facts as indicated in its reasoning, and subsequently, determined that N and O land among the 352 square meters (hereinafter “instant land”) owned by the Plaintiff, is prior to the annexation of N and O land.