2014Da235899 Delivery, etc. of Land

A

Chicago-si

Suwon District Court Decision 2014Na11199 Decided December 10, 2014

July 9, 2015

The judgment of the court below is reversed, and the case is remanded to Suwon District Court Panel Division.

The grounds of appeal are examined.

1. A person other than the State or a local government, for example, a person who actually constructs, maintains, or repairs a road as a self-help project, or a person who actually constructs, maintains, or repairs the existing road may not be deemed the State or a local government: Provided, That even if a road is constructed in the form of a self-help project by a resident, if the State or a local government bears a substantial portion of the construction cost and where special circumstances are recognized, such as where the public is being used for maintaining and repairing the road directly while carrying out construction works after the completion of the construction, such road may be deemed practically under the de facto control of the State or a local government. However, solely on the ground that the State or a local government provided the packaging construction of the deteriorated road at the request of a resident, it cannot be readily concluded that the State or a local government or an organization occupies the road (see, e.g., Supreme Court Decisions 88Da25267, Jun. 26, 190; 96Da25265, Nov. 22, 1996).

2. citing the reasoning of the judgment of the court of first instance, the court below acknowledged the fact that (1) the Defendant laid a water supply pipe in the instant road site around 2004 and re-packageded the instant road site in around 2009, and found it reasonable to deem that the instant road site owned by the Plaintiff was occupied by the Defendant according to the above facts. Under the premise, the court below determined that the Defendant was obligated to remove the instant road site and deliver the instant road site to the Plaintiff, barring any special circumstances.

3. However, according to the reasoning of the judgment below and the evidence duly admitted, the road site of this case belongs to "F" located in "C" in "C" in "C" in "C" in "C" in "C" in "C" in "C" in "C" in "C" in "C" in "C" in "C" in "C" in "C" in "C" in "C" in "C" in "C" in "C" in "C" in "C" in "C" in "C" in "C" in "C" in "C" in "C" in "C" in "C" in "C" in "C" in "C" in "C" in "C" in "C" in "C" in "C" in "C" in "C" in "C" in "C" in "C" and "C" in "C" in "C" in "C" in "C" in "C" in "C" in "C" in "C" in "C" in "C" in "C" in "C" in "C".

4. Examining these facts in light of the legal principles as seen earlier, it is doubtful whether the Defendant can readily conclude that the Defendant occupied the above F, including the instant road site, as a de facto controlling entity solely on the grounds stated by the lower court.

Nevertheless, the lower court concluded that the Defendant erred in occupying the instant road site, and accepted the Plaintiff’s claim against the Defendant for the delivery of the instant road site and the removal of its containers on that premise.

Therefore, the judgment of the court below is erroneous in the misapprehension of legal principles as to the occupation and management of roads by local governments, or by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, which affected the conclusion of the judgment. The ground of appeal assigning

5. Therefore, without examining the remaining grounds of appeal, we reverse the judgment below, and remand the case to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Jae-young

Justices Lee In-bok

Justices Kim In-bok, Counsel for the defendant