[1] The method of determining whether neighboring residents of the public object have the right to use the public object isolated from the public object

[2] The case holding that the owner of a customary market has no right to install and use a board on the road front of the store

[1] An adjacent resident of a public object has a special interest in the general use of an adjacent public object more than other general persons, and in this sense, the so-called advanced general use right which is not recognized for other persons can be guaranteed, and in case where the above-mentioned general use right is infringed, it may be protected under the Civil Act in relation to other individuals, but such right may also be acknowledged within the scope of the general use of the public object. Thus, whether the right to use the raised general use right can be recognized within a certain scope should be determined by comprehensively considering the purpose and utility of the public object in question, the relation of general use, the legal status of the person claiming the advanced general use right, and the adjacent nature and characteristics of the pertinent public object. Accordingly, as long as the public object is not used, the right to use the public object cannot be acknowledged solely on the ground that the neighboring resident of the public object is the one.

[2] The case holding that the owner of a customary market has no right to install and use a board on the road on the ground that the owner of a store in the customary market has used the road in front of the store beyond the general use and to recognize special interests

[1] Article 211 of the Civil Act / [2] Articles 211 and 214 of the Civil Act

Plaintiff (Counterclaim Defendant)

Succession to Participation (Attorney Lee Young-young, Counsel for the plaintiff-appellant)

Defendant-Counterclaim Plaintiff (Law Firm Gyeong & Yang, Attorneys Park Dong-dae et al., Counsel for the defendant-Counterclaim plaintiff-appellant)

Seoul Central District Court Decision 2003Na15166, 15173 Decided November 16, 2004

The judgment below is reversed, and the case is remanded to the Seoul Central District Court Panel Division.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Regarding ground of appeal No. 1

Based on the evidence of employment, the court below decided that the succeeding intervenor purchased the building where the store of this case was located in the lawsuit of this case from the plaintiff (Counterclaim defendant, hereinafter "the plaintiff") was sentenced to the judgment of the court of first instance against the plaintiff in the principal lawsuit and counterclaim, and that the non-party 1 was not entitled to purchase the building of this case at KRW 40 million,00,000,000,000,000 won in the principal lawsuit of this case from the defendant instead of paying the lease deposit amount of KRW 10,550,000 and the defendant's 7,450,000,000 won in the principal lawsuit of this case to the non-party 1 (the non-party 1). The court below rejected the judgment of the court below that the non-party 1 paid the defendant 18,000,000 won in preference to the defendant on February 27, 2003, but it did not demand the return of the above money due to non-party 1's allegation or legal representation.

2. Regarding ground of appeal No. 2

A. A. An adjacent resident of a public object has a special interest in the general use of the adjacent public object more than in other general persons, and in such sense, the so-called advanced general use right which is not recognized for other persons can be guaranteed. In the event that the above-mentioned general use right is infringed, it may be protected under the Civil Act in relation to other individuals, but such right may also be acknowledged within the scope of general use of the public object. Thus, the issue of whether the so-called advanced general use right can be recognized within a certain scope of a specific person shall be determined by comprehensively considering the purpose and utility of the public object in question, the relation of general use, the legal status of the claimant of the advanced general use right, the adjacent nature and peculiarity of the use of the public object in question, etc. However, as long as the public object is not used, such legal relationship can not be acknowledged solely on the ground that the neighboring resident of the public object is the adjacent resident of

B. Based on the circumstances indicated in its reasoning, the lower court acknowledged the Plaintiff’s right to use the instant store as a subordinate right raised in the instant store, which was bequeathed by the deceased Nonparty 2, in front of the store.

However, the contents of the decision of the court below cited by the court below are nothing more than indicating the mutual relation with the Defendant using the instant coordinate and the instant store together after the instant coordinate was installed, and even according to the original inquiry, the instant coordinate is installed on the road which is far below 240§¯ in front of the instant store. The Defendant leased and used the instant store from the deceased Non-Party 2 around 1974 due to a fire at the new underground street, and sold the instant coordinate, etc. on the road (the time when the instant coordinate was installed is disputing the relocation of the instant store). Thus, unless there is any circumstance found that the deceased Non-Party 2 or the Plaintiff used the instant road beyond the general use, and it cannot be said that he has the right to install and use the instant coordinate solely on the ground that he owned the instant store in light of the above legal principles as to the relation to the use of public water.

In addition, as long as the right to the instant coordinates is not acknowledged to the deceased non-party 2 or the Plaintiff, the fact that the instant coordinates were included in the object of the lease agreement, only based on the basis of the judgment of the court below, is erroneous by misapprehending the rules of evidence or by misapprehending the legal principles on the subordinate rights, etc. of the ownership, in violation of the rules of evidence. The ground of appeal assigning this error is with merit.

3. As to grounds of appeal Nos. 3 and 4

In full view of the circumstances indicated in its reasoning, the lower court determined that the instant coordinate was in unity with the instant store and the leased object, and thus, the store cannot be deemed to have been ordered to the participant, unless the Defendant renders the instant coordinate to the Plaintiff.

However, as long as the premise that the instant coordinate was included in the object of the lease agreement is erroneous as seen above, the above determination cannot be maintained, and even according to the recognition of the court below, even though the Defendant discontinued the possession of the instant store, it is judged only for the above reasons without examining and confirming whether or not the name of the store was presented or not. Therefore, the ground of appeal is with merit without examining the remaining points of view.

In addition, the court below acknowledged the fact that the defendant occupied and used the store of this case even after the termination of the lease contract of this case by the testimony of the non-party 3 (Evidence No. 10) and the non-party 3 witness of the court of first instance, and judged that the defendant was obligated to return unjust enrichment equivalent to the rent during the period of possession and use. However, although the non-party 3 made a statement corresponding to the above facts during the main examination, the above evidence is deemed to be doubtful in light of the fact that the non-party 3 made a statement corresponding to the above facts during the main examination, but re-convened it during the cross-examination, etc.

4. As to the fifth ground for appeal

After finding the facts as stated in its reasoning, the lower court determined that the Plaintiff and the succeeding intervenor are liable to compensate the Plaintiff and the succeeding intervenor for damages equivalent to the rent of the instant store, on the ground that the instant coordinate exists in front of the store, and it is difficult for the Plaintiff and the succeeding intervenor to bring goods into the instant store because it is difficult to bring goods into the instant store due to the Plaintiff’s failure to trade or lease, and the Plaintiff and the succeeding intervenor’s failure to trade or lease the instant store, thereby infringing on the ownership to the extent that they do not use or benefit from the instant store.

However, it is difficult to accept the above fact-finding and judgment of the court below. Even based on the recognition of the court below, it is installed to the extent that there is almost little gap between the coordinates on both sides of the road of this case, and the records show that the left-down of the central market of Yellow School is the majority of the pure labor shop operated separately from the rear shop. In light of the fact that the defendant's left-down exists in front of the store of this case, it is difficult to see that the use and profit-making of the store of the plaintiff and the succeeding intervenor is hindered to the extent that the use and profit-making of the store of the plaintiff and the succeeding intervenor is impossible.

Nevertheless, the lower court, solely on the grounds stated in its reasoning, concluded that the instant coordinate is likely to obstruct the store’s use and profit-making to the extent that it is impossible, did not conduct a trial or erred by misapprehending the facts against the rules of evidence. The allegation in the grounds of appeal assigning this error is with merit.

5. Conclusion

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Park Ill-sook (Presiding Justice)