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1. The defendant
(a) Out of the area of the attached drawings C 238 square meters in Gyeyang-gu, Seoyang-gu, Yangyang-si, each point of 1, 2, 3, and 1.
Reasons
1. Basic facts
A. The Plaintiff is the owner of Seoyang-gu Seoul Metropolitan Government C large 238 square meters (hereinafter “instant land”). The Defendant is the owner of D large 109 square meters adjacent to the said land, and the owner of a single-story house and a store on the ground (hereinafter “instant building”).
B. The registration of ownership preservation was completed around December 1, 1967. Since then, the Defendant acquired ownership transfer of the instant building and the instant D land, which is its site, around April 2, 2013. Of the instant building, part (excluding part of the outer wall) indicated in the annexed drawings (A) of the instant building was built by breaking up nine square meters among the land owned by the Plaintiff.
[Ground of recognition] Facts without dispute, entry of Gap evidence 1 to 5, purport of the whole pleadings
2. Determination
A. (1) According to the facts of the above determination as to the cause of the claim, the defendant occupies part of the land of this case without any authority as part of the building of this case was invaded upon the land of this case. Thus, the defendant is obligated to remove (a) part of the building of this case which affected the plaintiff's land and deliver the above part of the building of this case to the plaintiff.
(2) As to the gist of the defendant's defense, the defendant was well aware of the current state of adjoining land at the time when the plaintiff purchased the plaintiff's land, the plaintiff's claim for removal constitutes abuse of right in light of the fact that it is practically impossible to remove only the damaged part of the building of this case, its damage was great, and the plaintiff's interest was not significant due to the removal of the building.
(3) If the exercise of the right can be deemed an abuse of the right, the purpose of the exercise of the right is only to inflict pain and damage on the other party, and there is no benefit to the person who exercises the right, and the exercise of the right should be objectively deemed to be in violation of the social order, and such cases should be applied.