Where a landowner has changed the category of the land provided for the passage of the general public into a road and subsidized the sewerage construction and packing of the land, he/she shall make up for and sell all sites (negative)

In a case where a landowner’s land, other than the land A determined and publicly notified as a road according to an urban planning among the land owned by him, is constructed and sold as a building on the remaining housing site except the land A and the land A is naturally used as a road for the general public, the owner of the land A shall be deemed to have granted the buyer of the relevant housing site or all persons residing in the housing complex the right to use and benefit from the land A free of charge at the time of the sale of the housing site. As such, the land A cannot be deemed to have exclusively and exclusively exercised the right to use and benefit from the land. Therefore, the land A cannot be deemed to have opened and occupied the land A as a road by changing the land category of the land into a road and assisting the sewerage construction work and the road packaging. Accordingly, it cannot be

Article 741 of the Civil Act

Supreme Court Decision 80Da1962 delivered on June 9, 1981, 85Meu421 delivered on August 13, 1985, and 87Meu2072 delivered on October 25, 1988

Plaintiff 1 and one other, Attorneys Kim Sung-nam et al., Counsel for the plaintiff-appellant-appellee

Attorney Lee Jae-ho, Counsel for the defendant-appellant of Incheon Metropolitan City

Seoul High Court Decision 87Na2241 delivered on January 13, 1988

The appeal is dismissed.

The costs of appeal are assessed against the plaintiffs.

We examine the grounds of appeal.

1. According to the reasoning of the judgment below, the court below held that the land Nos. 1 and 2 of this case was originally divided into the forest of Nam-gu, Incheon ( Address 1 omitted) and the forest of ( Address 2 omitted), and that the land was determined and announced as the Incheon City Urban Planning Plan pursuant to the Urban Planning Act on December 28, 1970 at the market price, but the urban planning project was not implemented, and there was a change of the form and quality to create the housing site and several divisions, mergers, and land categories for each of the above forests, and that the plaintiff 1, 1, 1, and 2 obtained a change of the form and quality for the creation of the housing site on August 16, 1971, 1.69, 1.536, 1.536, which were purchased from the former owner, and combined the above two sites, and constructed the housing site with the road planning line and sold it to the general public on June 28, 1972.

If the facts are as above, barring any special circumstance, the owner of the above land may be deemed to have granted the right of free passage to the drainage of the above land site or to all the persons who will reside within the said housing complex, and thus, he cannot exercise the exclusive and exclusive right of use for the above land. Thus, even if the defendant changed the land category of the above land to a road and provided assistance in the sewerage construction works and the road packing, it cannot be deemed that the defendant opened and occupied the above land as a road, and thus, it cannot be said that the above plaintiff causes any loss.

The judgment of the court below to the same purport is just, and there are no errors in the misapprehension of legal principles as to the waiver of the right to use road sites and the road occupant.

2. In light of the records, the court below acknowledged the fact that the plaintiff 2 purchased 3,4,6, and No. 12-1, and No. 12-3 on September 21, 1972, based on the macro evidence and evidence No. 11-3, No. 11-6, and No. 12-3, the plaintiff 2 divided the part of the land for the purpose of the construction and sale as a housing site for the purpose of the construction and sale of the remaining (the address 5 omitted) land No. 1 and the other (the address 5 omitted) No. 2.678 on April 12, 1978 on the ground that the defendant submitted an application for change of form and quality to the urban planning line and submitted it to the defendant on April 12, 1978 on the condition that the road site, which is a public site, permitted the change of form and quality to the land to be donated to the defendant by the above plaintiff himself as a road site, and there is no error of law by misunderstanding

3. Therefore, the appeal is without merit. The costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Young-ju (Presiding Justice)