(a) Where it has become impossible to conduct a boundary restoration surveying due to the surveying method as at the time of subdivision with respect to each adjoining land;

B. Requirements for exercise of rights to constitute abuse of rights

A. The scope of ownership of neighboring Party A and Party B shall be determined by the boundary on the cadastral record, and in a case where the cadastral map has been prepared by surveying the area of the land partitioned not on the boundary of the building, but on the basis of the area partitioned, the boundary of each land shall be surveyed by the boundary on the basis of the current surrounding base point on the basis of the above cadastral record, if it is not possible to find the base point at the time of division, even if the area of the above divided area was found to be higher than the area on the registry, and it is not possible to conduct the boundary restoration by the surveying method at the time.

B. If the exercise of the right can be seen as an abuse of the right, the purpose of the exercise of the right should be to inflict pain and damage on the other party, and there should be no benefit to the person who exercises the right. In an objective view, the exercise of the right should be viewed as a violation of social order. Unless it does not fall under such a case, even if the loss of the other party is significantly high than the benefit that the exercise of the right has gained by the exercise of the right, such circumstance alone does not constitute abuse of the right.

(a) Article 212(b) of the Civil Act; Article 6 and Article 25 of the Cadastral Act; Article 45 of the Enforcement Decree of the same Act;

Supreme Court Decision 88Meu8194 decided Jan. 24, 1989 (Gong1986, 3030) (Gong1989, 299) decided Dec. 26, 1990 (Gong1991, 600). Supreme Court Decision 87Meu2911 decided Dec. 27, 198 (Gong1989, 229) (Gong190, 1333) Decided May 22, 1990

Plaintiff (Counterclaim Defendant)

Defendant Lessee (Counterclaim Plaintiff) and one other Defendants, Defendant 1 et al., Counsel for the defendant-appellant-appellant

Seoul Civil District Court Decision 90Na5886, 90Na5893 (Counterclaim) decided August 31, 1990

All appeals are dismissed.

The costs of appeal shall be borne by the defendants.

As to the Grounds of Appeal

1. According to the reasoning of the judgment below, the court below recognized the fact that part of the building of this case owned by the Defendants was located on the ground of 15 square meters wide from the site of this case (Seoul Seongdong-gu 1 omitted) owned by the Plaintiff and possessed the site, and held that the Defendants are liable for the damages suffered by the Plaintiffs due to the above possession, unless there is a legitimate title to possess the land at 15 square meters wide from the site of this case owned by the Plaintiff.

The first point of the lawsuit is whether the defendants' land was invaded by the land owned by the plaintiff can only be confirmed by the boundary line of the land owned by the plaintiff and the ( Address 1 omitted) land owned by the defendants. According to Article 45 of the Enforcement Decree of the intellectual property law, boundary restoration surveying shall be conducted in the same way as that at the time of surveying and registering the boundary. However, the court below's appraiser 1, who is a surveying engineer belonging to the Sungdong branch of the Korea Intellectual Property Association at the time of dividing and registering each of the above land, stated that it is impossible to measure the boundary in the same way as at the time of surveying and dividing the land of this case, and therefore, it is not possible to judge whether the land owned by the defendants is invaded by the land owned by the plaintiff. In addition, the court below's determination that the defendants' land was invaded by the plaintiff's land infringement by the boundary boundary boundary boundary boundary boundary boundary boundary boundary boundary boundary boundary boundary boundary boundary boundary boundary boundary boundary boundary boundary boundary boundary boundary boundary boundary boundary boundary boundary boundary boundary boundary boundary boundary boundary boundary within Article 4014 of the court below's.

According to the records, on 1966, before the plaintiff and the defendant purchased each of the above ( Address 1 omitted), and ( Address 2 omitted) land, each of the above land was divided and registered as one parcel of land on the cadastral map, so the location, land category, land area, and boundary of the land are specified by this registration unless there are other special circumstances, and the scope of ownership of the land is determined by the boundary on the cadastral book. In the above ( Address 2 omitted) and ( Address 1 omitted), in the case where each of the above ( Address 2 omitted) land was divided and the cadastral map was prepared based on the boundary of the building and the area of the divided land was established based on the size, even if the above divided area was found to be superior to that on the registry, it was not possible to find the base point at the time of the division, and thus, it was impossible to conduct a boundary restoration survey on the basis of the survey method at that time, so long as it was not possible to do so, the defendants should respond to the request of the plaintiff to the above part of the land.

This is because even if the defendants purchased the land with the knowledge that the de facto boundary of the building at present is the boundary of the land (road address 2 omitted), it is not possible to claim the boundary of the building at issue as the boundary of the land at issue in relation to the plaintiff.

In addition, the precedents cited by the theory of small party members are that the Seoul Special Metropolitan City has established a boundary by building 20 lots of forest land as housing site and by piling up a embankment according to its topography, but thereafter, it is decided on the remaining cadastral boundary in the cadastral map divided by drawing without surveying the cadastral record and the actual boundary in fact is extremely inconsistent with the boundary. Thus, in this case where the issue differs from this issue, the original judgment does not contain any error in violation of the precedents on party members. There is no ground for argument.

2. No. 2 of the lawsuit, even if the building of this case invadeds on the land owned by the Plaintiff, the above part belongs to the scope of the land owned by the Defendants ( Address 2 omitted). The Defendants, after purchasing the above site on December 16, 1974 and completing the registration of ownership transfer, occupied it in good faith, openly, and without fault for ten years with intent to own it, and since the registration of ownership transfer was completed on December 16, 1984, the prescription period for the acquisition of the register was completed on December 16, 1984. However, the ownership transfer registration registered in the name of the Defendants on the above ( Address 2 omitted) site is merely a registration indicating the ownership of only the land whose boundary is determined by the cadastral record and cannot be deemed as a registration expressing the ownership of the part over the part over which the plaintiff's land was excluded from the above ( Address 2 omitted) on the cadastral map. Therefore, there is no argument that the Defendants' acquisition by prescription under the premise that the ownership transfer registration was completed in the name of the Defendants

3. Sub-committee 3 points are: (a) even if the Plaintiff did not receive delivery of the above part of the land, the size of the part owned by the Defendants is smaller than that of the original registry at the time of the Plaintiff’s purchase; and (b) if the Plaintiff’s building owned by the Defendants did not illegally occupy the Plaintiff’s land; (c) as a result, the above building was invaded by the Plaintiff’s land due to cadastral error in preparing a subdivision plan; and (d) even if the Plaintiff’s delivery of the above part, there is a space of approximately 1.9 meters wide between the Plaintiff’s building and the Defendants’ building; and (e) the above part is more likely to cause enormous damages to the Defendants’ claim for removal of the above part of the building, which is 1.9 meters high than that of the building site, the lower court’s determination that the Defendants’ claim for removal of the above part of the building is more likely to have been made more than that of the Plaintiff’s building site; and (e) the Plaintiff’s claim for removal of the building site is no more than that of the Plaintiff’s new land.

4. The appeal shall be dismissed. It is so decided as per Disposition by the assent of all participating judges.

Justices Kim Sang-won (Presiding Justice)