[1] In a case where the owner of the adjoining land does not comply with a request for the boundary mark or fence installed by one of the landowners in a close relationship, whether the performance of the duty of cooperation can be instituted (affirmative), and in such a case, the contents of the court’s duty of cooperation (affirmative)

[2] Whether the owner of a plot of land is obligated to cooperate with the owner of the adjoining land when one of the owners of the plot of land in a close relationship requests the removal of the existing fence and the installation of a new fence (affirmative with qualification)

[3] The case holding that in a case where compensation is paid by mistake in accordance with the other party's argument that the boundary line is violated, the compensation payment agreement may be revoked by recognizing that the mistake or mistake of motive is limited to that of the other party, and the mistake or mistake of the boundary line is limited to that of the other party

[1] Unless a boundary mark or fence is installed on the boundary of land, the owner of one land may demand the owner of the adjoining land to cooperate in the installation of a usual boundary mark or fence at his/her joint expense, and the owner of the adjoining land shall be deemed to have the duty to cooperate with him/her. Thus, where the owner of the adjoining land does not comply with the request of one landowner, the owner of one land may seek a performance of his/her duty to cooperate with the owner of the adjoining land by civil litigation. The court may order the owner of the adjoining land to perform his/her duty to cooperate by examining necessary matters, such as the location of the boundary mark or fence (in principle, the boundary mark or fence to be newly installed, or the center or centerline of the fence shall be located on both sides of the boundary), material, shape, and size, etc. of the adjoining land, barring special circumstances.

[2] If a land owner does not have the authority to unilaterally dispose of the existing boundary marks or fences, one land owner is not allowed to remove the existing boundary marks or fences without the consent of the neighboring land owner, and in such a case, one land owner cannot compel the installation of a new boundary marks or fences only with the intent of one land owner. However, if one land owner has the authority to dispose of the existing boundary marks or fences, and if one land owner clearly expresses his/her intention to remove the existing boundary marks or fences, one land owner may demand the adjacent land owner to cooperate with the new boundary marks or fences.

[3] The case holding that in a case where money was paid under the pretext of compensation or consolation money for a crime over the boundary by mistake due to the other party's strong assertion that he infringed on the boundary line, the mistake as to the true boundary line is an error in the motive of making an agreement for payment of the above money, but such motive mistake is caused by the other party's strong assertion, and the witness expressed his motive as the contents of the expression of intent, and it is important to the extent that he would not have made such an expression of intent if he had made such a mistake, and that he would not have made such an expression of intent if he had made such a mistake, it is important to the extent that he would not have made such an expression of intent, and that he would not have made such an expression of intent if he had made such a mistake in the important part of the contents of the agreement.

[1] Article 237 (1) of the Civil Act / [2] Article 237 (1) of the Civil Act / [3] Article 109 (1) of the Civil Act

[3] Supreme Court Decision 90Meu27440 delivered on March 27, 1991 (Gong1996, 1276), Supreme Court Decision 91Da38419 delivered on February 25, 1992 (Gong1992, 1141), Supreme Court Decision 94Da11217 delivered on September 30, 1994 (Gong1994Ha, 2841 delivered on November 21, 1995), Supreme Court Decision 95Da516 delivered on November 21, 1995 (Gong196Sang, 47) (Gong196Sang, 196Sang, 1363)

Plaintiff

Defendant (Attorney Park In-bok, Counsel for the defendant-appellant)

Seoul District Court Decision 96Na30129 delivered on December 17, 1996

The part of the lower judgment against the Plaintiff regarding the claim related to the installation of a new fence is reversed, and that part of the case is remanded to the Seoul District Court Panel Division. The remainder of the Plaintiff’s appeal and the Defendant’s appeal are dismissed, respectively. The costs of appeal regarding the dismissed part are assessed against each party.

1. The plaintiff's grounds of appeal are examined.

A. As to the claim for damages on the premise that the defendant intentionally or negligently filed a false petition, etc.

According to the reasoning of the judgment of the court below, as to the defendant's appeal to the effect that the fence of the house constructed by the plaintiff at the time of the Dongjak-gu Office and the Seoul Metropolitan Government Office had infringed on the boundary, and that the Board of Audit and Inspection also had the same attitude as the Board of Audit and Inspection, the court below held that there was no evidence to acknowledge that the defendant, after the preparation of evidence as stated in the judgment, knew of the fact that the fence of the house constructed by the plaintiff at the time was not infringed on the boundary, or even though he could have known the fact, there was no evidence to support that the defendant had made, or attempted to make, the above petition. In comparison with the records, the court below's above measures are acceptable, and there were no errors

All claims for compensation for damages, such as the cost of removal of the original wall, the cost of construction of the wall, the current cost of removal of the wall, the present cost of the plaintiff's assertion that the plaintiff would make payment in the future, and the cost of the plaintiff's claim for payment of damages, such as the cost of confirmation of land boundary, appeal, accusation, and the claim for adjudication on constitutional complaint, which the plaintiff raised against the defendant, are premised on the fact that the above petition, etc. constitutes tort caused by the defendant's intentional or negligent act. Therefore, the court below's dismissal of

B. As to the claim related to the installation of a new fence

According to the reasoning of the judgment below, the court below held that the defendant is not obliged to install a wall with common expenses, since the defendant is obligated to install a wall at the expense of the plaintiff's land and the defendant's land boundary line, the defendant is obligated to bear 1/2 of the installation cost of a new wall centered on the boundary line, even if the parties in the upper relationship can install a common boundary mark or fence at the common expenses on the premise of co-ownership, this is premised upon the agreement between both parties. However, in the case of this case, the defendant cannot be deemed to have a duty to install a wall at the common expenses centered on the boundary line.

However, Article 237(1) of the Civil Act provides that a person who owns neighboring land may normally construct a boundary mark or fence at common expenses, and Paragraph (2) provides that all expenses shall be borne by both parties. Therefore, unless a boundary mark or fence is installed on the boundary of land, either land owner (hereinafter “owner of adjacent land”) may request the owner of adjacent land (hereinafter “owner of adjacent land”) to cooperate in the installation of a usual boundary mark or fence at common expenses, and the owner of adjacent land shall be deemed to have the duty of cooperation. In a case where the owner of adjacent land fails to comply with either land’s request, one land owner may seek the performance of his/her cooperation duty against the owner of adjacent land by civil litigation, and the court may order the owner of adjacent land to newly install a boundary mark or fence (in principle, the boundary mark or fence of adjacent land or the central line of the fence or the size of both adjacent land, and to cooperate with the owner of adjacent land by examining necessary matters, barring any special circumstance.

However, in the case of this case, the Plaintiff already installed a fence on the land owned by the Plaintiff and the land owned by the Defendant at the outside side, and there is a question as to whether to allow the installation of a new boundary mark or fence even in the case where there is a boundary mark or fence under Article 237(1) of the Civil Act. If one land owner does not have the authority to unilaterally dispose of the existing boundary mark or fence, removal of the existing boundary mark or fence without the consent of the neighboring land owner is not allowed. In this case, one land owner is not allowed to compel the installation of a new boundary mark or fence only with the intent of one land owner. However, if one land owner has the authority to dispose of the existing boundary mark or fence and expressed his intention to remove the existing boundary mark or fence, one land owner may file a lawsuit against the neighboring land owner to cooperate with the new boundary mark or fence.

Nevertheless, the court below's determination that the court below, without the agreement of both parties, cannot be said to have a duty to install a fence at the joint expense centered on the boundary line, is erroneous in the misunderstanding of legal principles as to Article 237 of the Civil Code, and such misunderstanding of legal principles as to the plaintiff's claim related to the installation of a new fence, which affected the conclusion of the judgment. There is a reason to point out

C. As to a claim for return of unjust enrichment related to a fence site

According to the reasoning of the judgment below, the court below held that the current fence which dividess the plaintiff's land and the defendant's land into the land owned by the plaintiff with respect to the claim for return of unjust enrichment related to the wall site is not installed only on the ground of the plaintiff's land. However, the current fence is not installed on the premise of co-ownership by agreement between the plaintiff and the two parties, and even if the plaintiff's own land was solely installed and the plaintiff gains anti-private profit by installing a fence only on his own land, it cannot be deemed that the plaintiff's land (the amount equivalent to the rent by occupying it) equivalent to the half of the fence installed by the plaintiff without any legal ground. The above judgment of the court below is just, and there is no error of law as discussed above. There is no ground to

2. We examine the defendant's grounds of appeal.

According to the reasoning of the judgment below, on July 30, 1992, the court below presumed that the plaintiff's existing house was donated by mistake to the defendant in order to resolve the dispute with the defendant who asserts that the plaintiff's existing house was partially infringed upon the boundary line of the land owned by the defendant and that the new house was partially infringed upon the boundary line, and thus, the defendant is obligated to pay the above amount and compensation for delay thereof to the plaintiff who cancelled the plaintiff's expression of gift by mistake. Further, according to the evidence established by the court below, the plaintiff's existing house was a line linking 3 and 4 with the indication of the attached drawing attached to the judgment of the court below because the plaintiff's existing house was invaded and the new house was invaded. The plaintiff's existing house was correct to the Dongjak-gu Office and Seoul Metropolitan Government Office, and the Board of Audit and Inspection thought that the plaintiff's new appeal was a prior one asserted by the defendant, and found the plaintiff's payment of compensation or compensation for the defendant's mistake as a result of cancellation of the boundary line.

However, according to the records, there is no possibility to consider that the plaintiff asserted that he would revoke the above money on the ground of mistake, and if the evidence adopted by the court below is compared with the records, the fact-finding of the court below that the plaintiff's expression of intent was caused by mistake is justifiable. Therefore, it cannot be said that the court below violated the principle of pleading and disposition, or erred in the misconception of facts against the rules of evidence by judging the facts that the plaintiff did not have asserted. There is no reason to discuss this issue.

In addition, according to the facts acknowledged by the court below, it is argued in the grounds of appeal that the mistake of the above true boundary constitutes an error in the motive that the plaintiff made an agreement to pay the above monetary amount. However, according to the facts acknowledged by the court below, it is important that the plaintiff expressed his motive in entering into the agreement of this case as the content of the defendant's strong assertion, and it is important that the plaintiff would not have made such an expression of intent if he did not make such a mistake. In addition, the plaintiff's expression of intent to pay the above money would have been an error in the important part of the general delivery plaintiff's position, and thus, the plaintiff may cancel the agreement to pay the above money to the defendant on the grounds of the plaintiff's mistake. There is no error in the misapprehension of legal principles as to the cancellation of declaration of intent on the grounds of mistake.

3. Therefore, the part of the judgment of the court below against the plaintiff regarding the claim related to the installation of a new fence shall be reversed, and that part of the case shall be remanded to the court below for a new trial and determination. The remaining appeals by the plaintiff and the defendant shall be dismissed, and the costs of appeal as to the dismissed part shall be borne by the losing party by the assent of all Justices who reviewed the appeal.

Justices Jeong Jong-ho (Presiding Justice)