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1. The defendant
A. Of the land size 212 square meters in Kimhae-si, the annexed drawing indication 1, 2, 3, 4, 5, 6, 16, 15, 14, 13, 12, 11, 10, among the land size 212 square meters in the annexed sheet.
Reasons
1. Facts of recognition;
A. On August 6, 2007, the Plaintiff completed the registration of ownership transfer based on sale on July 23, 2007, with respect to the 212 square meters of land B in Kimhae-si (hereinafter “instant land”).
B. Of the instant land, the portion of 171 square meters inboard (A) connected each point of the following points in sequence, among the instant land, was used as village residents’ passage from the previous year. Defendant Kimhae-si had built cement packaging works on the instant road before 2009, and the instant road is in common use for the general public’s passage. The instant road is in common use for the sake of general public.
[Ground of recognition] Facts without dispute, entry of Gap evidence 1, result of appraisal commission to the Korea Cadastral Corporation by this Court, purport of the whole pleadings
2. Determination
A. Determination as to the cause of the claim can be divided into possession and possession as a road management authority by the State or a local government, and possession as a de facto controller. Thus, if the existing road is determined by the Road Act, or a road zone is constructed by the implementation of an urban planning project under the Urban Planning Act, possession as a road management authority can be recognized starting from the existing existing road. Even if a road is not established by the Road Act, the State or a local government can be deemed to have commenced the construction or maintenance of a road, such as expansion of the existing road, road packing, or installation of sewerage system, and use it for the general public’s traffic from the time when it is actually controlled by the State or a local government.
(see, e.g., Supreme Court Decision 2010Da47681, Nov. 25, 2010). In addition to the above recognition facts, the Defendant’s instant part of the road is prior to the year 2009 where cement packaging construction was conducted.