The case holding that the exclusive right to use and benefit from the land was waived by providing free access roads to the land to contribute to the sale at the time of dividing the land.

The case holding that the exclusive right to use and benefit from the land was waived by providing free access roads to the land to contribute to the sale at the time of dividing the land.

Articles 220 and 741 of the Civil Act

Supreme Court Decision 92Da15970 delivered on July 24, 1992 (Gong1992, 2535) Supreme Court Decision 94Da20013 delivered on September 30, 1994 (Gong1994Ha, 2850) Supreme Court Decision 95Da39946 delivered on November 24, 1995 (Gong196Sang, 150)

Applicant (Law Firm Seocho, Attorneys Park Sang-chul et al., Counsel for the plaintiff-appellant)

Respondent (Attorney Kim Chang-soo, Counsel for defendant-appellant)

Seoul High Court Decision 94Ka396 delivered on November 30, 1994

The judgment below is reversed and the case is remanded to Seoul High Court.

1. According to the reasoning of the judgment below, the facts and the judgment of the court below are as follows.

(a) Determination of provisional disposition prohibiting the obstruction of construction work;

On November 10, 1993, Incheon District Court 93Kahap2971, the applicant filed a provisional injunction against obstruction of construction with the purport that "the respondent shall not obstruct the applicant and the third party designated by the applicant to install a gate on the land of 388.4 square meters in the Nam-gu, Incheon ( Address 1 omitted) and to create a garden, etc." but on January 19, 1994, the applicant filed a provisional injunction against obstruction of construction with the purport that "the above provisional injunction application was dismissed by the above court on January 19, 1994, and filed an appeal against it, the member revoked the decision of the Incheon District Court on June 22, 1994, and accepted the application of the applicant, and decided the provisional injunction

(b) basic facts;

(1) On December 26, 1984, the applicant purchased from Nonparty 2 a house with a size of 388.4 square meters in Nam-gu, Incheon ( Address 1 omitted) and its ground on his behalf, and completed the registration of ownership transfer on the following day.

(2) Before the initial merger, the respondent owned a building ( Address 2 omitted), 340.6 square meters, and 00 square meters on its land, but on April 23, 1993, the respondent was awarded a bid for the ( Address 3 omitted) 125 square meters and the ( Address 2 omitted) land on August 24, 1993, following the successful bid for the ( Address 3 omitted) housing adjacent to the above site, and the ( Address 2 omitted) land was divided into the ( Address 3 omitted) site on August 24, 199, and the area of the ( Address 3 omitted) site was increased to 465.6 square meters in lieu of the extinguishment of the merger. The respondent removed the fence installed on the boundary of both previous land, and the entire ( Address 3 omitted) site was directly connected with the public service after the merger.

(3) The respondent has merged as above and extended the single-story house on the ground before the merger with the second floor to the second floor, and the second floor is the respondent's living house, and the second floor is leased to the non-party 3 and its family members currently reside.

(4) Meanwhile, the applicant-owned ( Address 1 omitted) and 125 square meters ( Address 3 omitted) prior to the merger owned by Nonparty 2 around June 6, 1975, all of which were divided from ( Address 4 omitted) land to May 8, 1975, and were owned by Nonparty 2. All of the above houses were newly built on December 24, 1974. The ( Address 1 omitted) and the above-ground houses were owned by Nonparty 2 to the applicant on December 27, 1984, and the ( Address 3 omitted) and the above-ground houses were transferred to Nonparty 5, Nonparty 6, Nonparty 7, Nonparty 8, Nonparty 9, Nonparty 10, Nonparty 10, and Nonparty 15, and Nonparty 2 were transferred to Nonparty 13 and Nonparty 4 on the order as seen above.

However, if both the ( Address 3 omitted) and the (Road 1 omitted) and the (Road 1 omitted) and the (Road 2 omitted) before the merger were owned by Nonparty 2, there was no problem of passage for access to the public road, but that woman transferred the ( Address 3 omitted) site and the (Road 3 omitted) land before the merger to Nonparty 4, as seen in the annex 1 drawing, are surrounded by another person's land (Road 2 omitted), as seen in the annex 10, 19, 23 land and (Road 2 omitted) land (Road 1 omitted) and (Road 2.3 (Road 3 omitted, as seen in the annex 2 drawing), the part of the above drawing indication (Road 1 omitted) among the land (Road 2 omitted) and the part of the land (Road 3 omitted for the applicant's access to the land (Road 3 omitted) and the part of the above land (Road 1 omitted for the applicant's access to the land) which were used by Nonparty 4 and the part of the above land.

(5) On October 193, in order to create the part of the land in the dispute in this case as a garden, the applicant asserted that the respondent has the right to pass through the part of the dispute in this case and obstructed the construction work by asserting that the respondent has the right to pass through the part of the land in this case after removing the fence installed on the north (including the line connecting each point of 11,3, and 4 in sequence 11, 3, and 4 above as indicated in the first drawing) and then removing the fence installed on the north (including the construction of gate on the line connecting the point of 4, 9).

(c) the existence of preserved rights;

(1) In principle, the owner of a false land may freely use and benefit from the land in question without being disturbed by anyone. Thus, the applicant's ( Address 1 omitted) as the owner of the land in question is a matter of his own freedom to create a garden for the part of the land in question, which is part of the said site, or to install gate above it, barring any special circumstance. Therefore, unless the respondent asserts and proves that the respondent has the right to pass through the part of the land in question, obstructing the Respondent's above landscaping work is an infringement upon the applicant's use of the part of the land in question and the right to benefit. Thus, the right to be preserved for the prohibition of interference with the construction in question is recognized.

(2) However, the respondent: (a) sold to the applicant the land in the dispute of this case, which was already set up as a road under the Building Act in selling ( Address 1 omitted) site and the housing on its ground, to the applicant; and (b) sold only the remaining part of the land in the dispute of this case except for the sale subject to purchase and sale; and (c) completed the registration of ownership transfer on the whole site of this case to the applicant ( Address 1 omitted); (d) since the part of the land in the dispute of this case was divided into a road and did not make a change of land category to the road, the respondent asserted that the applicant, who is only the title trustee, did not have the right to be preserved for the provisional disposition of this case, has no right to file a lawsuit consistent with the above argument, but there is no reason to believe that there is no other evidence to acknowledge it.

(3) Second, Nonparty 2 sold ( Address 3 omitted) land and its ground to Nonparty 4 prior to the merger to Nonparty 1, because the land site was surrounded by all sides of the surrounding land, and the right to use the land in this case was not available without compensation. Since Nonparty 4 transferred ( Address 3 omitted) land and its ground house to Nonparty 2, it cannot be viewed that the applicant did not have any right to use the land in this case’s land without compensation until the respondent did so. On the other hand, Nonparty 2 did not have any right to use the land in this case’s land ( Address 1 omitted) because it is difficult for the applicant to purchase the land in this case’s address and its ground lot to view that the applicant did not have any right to use the land in this case’s address without compensation, and the applicant’s right to use the land in this case’s land before the establishment of the land area’s relocation and the right to use the land in this case’s non-party 2, who purchased the land in this case’s land without compensation, cannot be viewed as having any right to use the land in this case’s land.

(4) In addition, the respondent asserts that, as the non-party 2 acquired the ownership of the site before the merger and used the part of the land in the instant case as a passage to the public road, the former purchaser of the site before the merger including the non-party 4 from June 7, 1962, starting to use the part of the instant case as a passage to the public road, and the former purchaser of the land before the merger including the non-party 8 continued to use it as a passage to the road before the merger and the non-party 8 purchased the right of passage to the part in the instant case before the merger, the respondent who purchased the land before the merger also has the right of passage to the land before the merger ( Address 3 omitted) since the ownership of the land in the instant case was acquired until the expiration of the period of passage to the non-party 2. The land owner of the dominant land was not required to establish the passage to the non-party 4 on his own, or it was not necessary to maintain the passage to the non-party 2 as the part of the instant case's land (the non-party 2).

(5) Since the respondent's right of access to the above land was no longer available to the residents of the above land due to the lack of access to the surrounding part of the building's public road construction area or the surrounding part of the building's public road construction area, the Respondent's right of access to the surrounding part of the building's public road construction area or the surrounding part of the building's public road construction area's public road construction area's neighboring part of the building's public road construction area's public road construction area's private road construction area's private road construction area's private road construction area's private road construction area's private road construction area's private road construction area's private road construction area's private road construction area's private road construction area's private road construction area's private road construction area's private road construction area's private road construction area's private road construction area's private road construction area's private road construction area's private road construction area's private road construction area's neighboring part's private road construction area's private road construction area's private road construction area's private road construction area's private road construction area.

D. Ultimately, the applicant's application for provisional disposition of this case has the right to be preserved, and the necessity of preservation can be recognized according to the whole purport of the pleading, so the decision of provisional disposition of prohibition of obstruction of construction of this case which the party member accepted the above application is legitimate, and therefore, it is justified.

2. We examine the grounds of appeal.

A. According to the facts and records acknowledged by the court below, the (A), (b) portion of [Attachment 1 Map No. 1] and (2) of the judgment of the court below is the width from around July 20, 1974 to the contribution of the site at the time of the land readjustment project, which was implemented in the vicinity of the land, 27.5, the land was substituted by the passage of the National Land Planning and Utilization Act, the length of which was 27.5; (b) Nonparty 2, who was the owner of the land before subdivision, constructed two houses around December 24, 1974; and (c) before the above land was divided into two houses ( Address 1 omitted) and (3) before the above land was acquired from the above land, and the exclusive residential residential residential residential residential residential residential residential residential residential residential residential residential residential residential residential residential residential residential residential residential residential residential residential residential residential residential residential residential residential residential residential residential residential residential residential residential residential residential residential residential residential residential residential residential residential residential residential residential residential residential residential residential residential residential residential residential residential residential residential residential residential residential residential residential residential residential residential residential residential residential residential residential residential residential residential residential residential residential residential residential residential residential residential residential residential residential residential residential residential residential residential residential residential residential residential residential residential residential residential residential residential residential residential residential residential residential activities.

Thus, the respondent who had owned the building site and the above ground leisure building prior to the merger may freely pass the above (Ga) and (Na) land as the respondent who acquired the building site prior to the merger on April 23, 1993, and the applicant shall be entitled to pass the above (Ga) and (Na) land. The applicant shall pass the above (Ga) and (Na) land.

B. However, according to the records, the respondent asserts that he has no right to be preserved on the ground that he did not have the right to be preserved at the court below (refer to the preparatory brief dated January 7, 1994 and the reply of March 29, 1994). The court below, which is the fact-finding court, should have deliberated more on this point, and then consider whether or not the right to be preserved exists or the right to be preserved in the case should be authorized for the provisional disposition of this case. However, the court below approved the provisional disposition of this case without doing so. Thus, the court below did not err by misapprehending the legal principles on waiver of the right to use and benefit, failing to exhaust all necessary deliberations, or by neglecting the decision of the parties on the assertion, which affected the conclusion of the judgment. There is no reason to discuss this

3. The judgment of the court below is reversed without examining the remaining grounds of appeal, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Jong-sik (Presiding Justice)